M/s Anshul Goyal Land & Housing Ltd., Ludhiana V. DCIT, C-7, Ludhiana

ITA 462/CHANDI/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0561 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 12-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Opportunity of being heard; Principle of natural justice; Reassessment proceedings; Set aside
• Section: 143(3); 147; 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH SMC CHANDIGARH !', # BEFORE: SMT. DIVA SINGH, JM ./ ITA NO. 462/CHD/2019 / ASSESSMENT YEAR : 2013-14 M/S ANSHUL GOEL LAND & HOUSING LTD., 1 ST FLOOR, CITY PLAZA, MAIN ROAD, HAIBOWAL KALAN, LUDHIANA. VS THE DCIT, CIRCLE-7, LUDHIANA. ./ PAN NO: AAFCA7899D / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : NONE # ! ' / REVENUE BY : SHRI MANJIT SINGH, CIT-DR $ % ! &/ DATE OF HEARING : 11.09.2019 '()* ! &/ D ATE OF PRONOUNCEMENT : 16.09.2019 $%/ ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE WHEREIN THE CORRECTNESS OF THE ORDER DATED 10.10.20 18 OF CIT(A)-3, LUDHIANA PERTAINING TO 2013-14 ASSESSMENT YEAR IS ASSAILED ON VARIOUS GROUNDS ON MERITS INCLUDING GRO UND NO. 2 WHICH READS AS UNDER: 2. THAT THE ORDER PASSED BY THE LD. CIT(A)-3, LUDHIANA IS IN CONTRAVENTION T O THE PRINCIPLES OF NATURAL JUSTICE AND WITHOUT PROVI DING REASONABLE OPPORTUNITY TO THE ASSESSEE. 2. AT THE TIME OF HEARING AN ADJOURNMENT APPLICATIO N WAS MOVED ON BEHALF OF THE ASSESSEE SEEKING TIME TO PRE PARE. ITA 462/CHD/2019 A.Y. 2013-14 PAGE 2 OF 5 HOWEVER, CONSIDERING THE GROUND RAISED AND THE MATE RIAL AVAILABLE ON RECORD, IT WAS DEEMED APPROPRIATE TO P ROCEED WITH THE PRESENT APPEAL EX-PARTE QUA THE ASSESSEE APPELL ANT ON MERITS AFTER HEARING THE LD. CIT-DR. 3. A PERUSAL OF THE RECORD SHOWS THAT ON THE TWO AD DITIONS OF RS. 13,13,200/- AND RS. 14,00,000/- MADE BY THE AO TO THE RETURNED INCOME OF RS. 5,70,990/- BY AN ORDER DATED 31.12.2017 U/S 147 READ WITH SECTION 143(3) OF THE ACT WAS CHALLENGED IN APPEAL BEFORE THE CIT(A). IN THE ABS ENCE OF ANY REPRESENTATION ON THE PART OF THE ASSESSEE AS NOTED IN PAGE 4 PARA 4 OF THE IMPUGNED ORDER, THE APPEAL OF THE ASS ESSEE WAS DISMISSED. FOR READY REFERENCE, RELEVANT PARAS 4 A ND 5 OF THE IMPUGNED ORDER ARE EXTRACTED HEREUNDER : 4. DURING THE COURSE OF APPELLATE PROCEEDINGS VARIO US DATES OF HEARING HAVE BEEN FIXED DETAILS OF WHICH ARE AS UNDER:- SR. NO. DATE ON WHICH NOTICE WAS ISSUED MODE OF SERVICE DATE OF HEARING REMARK 1 I.T.N.S 37 AND 51 ON 23.04.2018 THROUGH NOTICE SERVER 15.05.2018 ATTENDED AND CASE ADJ. TO 21/05/2018, ON 21.05.2018 CASE ADJ. TO 18/06/2018 AND ON 18/06/2018 CASE ADJ. TO 09/07/2018. AND ON 09.07.2018 CASE ADJ. TO 18/07/2018 AND ON 18.07.2018 CASE ADJ TO 07/08/2018 AND ON 07.08.2018 CASE ADJ. TO 16/08/2018 2. NOTICE ISSUED ON 16.08.2018 NONE ATTENDED 3. NOTICE ISSUED ON 05.09.2018 THROUGH NOTICE SERVER 14.09.2018 NONE ATTENDED AND REPORT OF NOTICE SERVER RECEIVED. 4. NOTICE ISSUED ON 19.09.2018(LAST OPPORTUNITY) THROUGH NOTICE SERVER 09.10.2018 NONE ATTENDED AND REPORT O F NOTICE SERVER RECEIVED. ITA 462/CHD/2019 A.Y. 2013-14 PAGE 3 OF 5 FROM THE ABOVE SEQUENCE OF EVENT, IT CAN BE SEEN TH AT NEITHER THE APPELLANT NOR HIS COUNSEL ATTENDED THE HEARING ON EACH OCCASION ALTHOUGH HE H AS BEEN ISSUED NOTICES FOR HEARING ON VARIOUS DATES, WHICH HAVE BEEN DULY SERVED ALSO. TH E APPELLANT HAS NOT EVEN FILED ANY APPLICATION SEEKING ADJOURNMENT ON THE DATES WHERE NOTICED 'HAVE BEEN SERVED PROPERLY. THE APPELLANT HAD ALSO FAILED TO FILE ANY WRITTEN S UBMISSIONS IN SUPPORT OF VARIOUS GROUNDS OF APPEAL. IT IS ALSO BEEN NOTICED THAT THE APPELLA NT HAS NOT ATTENDED THE HEARING ON THE DATE FIXED FOR HEARING WHERE NOTICE HAVE BEEN PROPE RLY SERVED. AS THE APPELLANT HAS NOT AVAILED ANY OF THE OPPORTUNITIES ALLOWED TO HIM TO REPRESENT THE CASE, I AM OF THE OPINION THAT THE APPELLANT IS NOT INTERESTED IN PURSUING HI S APPEAL MATTER AND HAS TO SAY NOTHING IN THE MATTER IN ADDITION TO GROUNDS OF APPEAL TAKEN B Y HIM. SO, THE APPEAL FILED BY THE APPELLANT IS BEING DISPOSED OFF EX-PARTY ON THE BAS IS OF THE MATERIAL AVAILABLE ON RECORDS WITHOUT ALLOWING ANY FURTHER OPPORTUNITY OF BEING H EARD TO THE APPELLANT. THE MAXIM VIGILANTIBUS NON-DERMIENTIBUS JURA SUBVENUNT' I.E. 'THE LAW ASSIST THOSE WHO ARE VIGILANT AND NOT THOSE WHO SLEEP OVER THEIR RIGHTS' IS APPLICABLE IN THIS CASE. 5. I HAVE ALSO GONE THROUGH THE MERIT OF THE CASE A LSO. THE APPELLANT HAS CHALLENGED REOPENING U/S 148, VIDE GROUND 1-4. HOWEVER THE APP ELLANT HAS FAILED TO EXPLAIN THE ANOMALY OR LACUNA IN REOPENING PROCEEDING OF ASSESS E'S CASE. EVEN AT THE TIME OF ASSESSMENT PROCEEDINGS THE APPELLANT HAS NOT CHALLE NGED REASSESSMENT PROCEEDINGS BEFORE AO. ACCORDINGLY AFTER GOINGS THROUGH DETAILED FACTS OF THE CASE, I DO NOT SEE ANY ANOMALY IN THE REASSESSMENT PROCEEDINGS U/S 148. ACCORDINGL Y THESE GROUNDS OF APPEALS STANDS DISMISSED. VIDE GROUNDS OF NO. 5 TO 7 THE APPELLANT HA S CHALLENGED THE ACTION OF THE ASSESSING OFFICER IN MAKING THE ADDITION OF RS.13,13,200/- ON ACCOUNT OF UNCONFIRMED EXPENSES PAYABLES AND RS.14,00,000/- BY INVOKING THE PROVISI ON UNDER SECTION 68 OF THE ACT. THE APPELLANT HAS FAILED COMPLETELY TO FURNISH ANY EXPL ANATION FOR THESE ISSUES AT THE TIME OF ASSESSMENT PROCEEDINGS. IT IS TRANSPIRED FROM THE A SSESSMENT ORDER THAT THE APPELLANT HAS NOT FURNISHED ANY PROPER EXPLANATION AT THE TIME OF ASSESSMENT PROCEEDINGS, REGARDING WHICH THE AO HAS CLEARLY MENTIONED HIS DISSATISFACT ION OVER THE APPELLANT'S SUBMISSION, IN THE ASSESSMENT ORDER. ON BOTH OF THE ISSUES PERTAIN ING TO UNCONFIRMED EXPENSES PAYABLES AMOUNTING TO RS.13,13,200/- AND ADDITION U/S 68 ON ACCOUNT OF ADVANCES RECEIVED AGAINST SUPPLIES AMOUNTING TO RS.14,00,000/-, THE ASSESSEE HAS NOT COME FORWARD WITH ANY SATISFACTORY; EXPLANATION AT THE TIME OF ASSESSMENT PROCEEDINGS. THE APPELLANT HAS NOT FILED ANY WRITTEN SUBMISSION AT THE TIME OF APPELLA TE PROCEEDINGS EVEN AFTER AVAILING SO MANY OPPORTUNITIES AND ADJOURNMENTS AS MENTIONED AB OVE. ACCORDINGLY IT IS TREATED THAT THE APPELLANT HAS NOTHING TO EXPLAIN FURTHER. THERE FORE THESE GROUNDS OF APPEAL ARE DISMISSED. 4. IT IS SEEN THAT IN THE FACTS OF THE PRESENT CASE , THE ASSESSEE HAS FAILED TO ADDRESS THE LACK OF REPRESEN TATION BEFORE THE CIT(A). THE LD. CIT-DR REFERRING TO THE OPPORTUNITIES PROVIDED SUBMITTED THAT THE ASSESSEE IS REPEATEDLY CARELESS ITA 462/CHD/2019 A.Y. 2013-14 PAGE 4 OF 5 AND MAY HAVE NOTHING TO SAY AND THE ADDITION HAS BE EN ACCEPTED. I AGREE WITH THE ABOVE ASSERTION TO THE EXTENT THAT ADMITTEDLY MORE THAN SUFFICIENT OPPORTUNITY HAS BEE N PROVIDED TO THE ASSESSEE. IT IS NOTED THAT THE ASSESSEE IRR ESPONSIBLY HAS NOT CARED TO ADDRESS THE SAID SHORTCOMING EVEN BEFORE THE ITAT. HOWEVER, IT IS ALSO EVIDENT THAT THE SUSTAINI NG OF THE ADDITION HAS NOT BEEN ACCEPTED BY THE ASSESSEE AS I S EVIDENT FROM THE FILING OF THE PRESENT APPEAL. THUS, THERE IS NO DISPUTE THAT THE GRIEVANCE OF THE ASSESSEE REMAINS. ACCORDINGLY, TAKING EXCEPTION TO THE CASUALNESS EXH IBITED ON THE PART OF THE ASSESSEE BY NOT ADDRESSING ITS CARE LESSNESS, IT IS DEEMED APPROPRIATE STILL IN THE INTERESTS OF SUB STANTIAL JUSTICE TO SET ASIDE THE IMPUGNED ORDER SO AS TO AF FORD ONE MORE OPPORTUNITY TO THE ASSESSEE. WITH THE ABOVE O BSERVATION, THE ORDER IS SET ASIDE AND THE ISSUES ARE RESTORED BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO PASS A SPEAK ING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REA SONABLE OPPORTUNITY OF BEING HEARD. WHILE SO DIRECTING, IT IS MADE CLEAR THAT THE OPPORTUNITY SO PROVIDED IN GOOD FAIT H TO THE ASSESSEE IS UTILIZED FAIRLY AND FULLY AND THE ASSES SEE DOES NOT ABUSE THE TRUST REPOSED IN IT. IN THE EVENTUALI TY OF ABUSE OF THE SAME, IT IS MADE CLEAR THAT CIT(A) WOULD BE AT LIBERTY TO PASS AN ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE ADJOURNMENT APPLICATION FILED ON BEHALF OF THE ASSESSEE ITA 462/CHD/2019 A.Y. 2013-14 PAGE 5 OF 5 STANDS REJECTED. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH SEPT.,2019. SD/- ( !' ) (DIVA SINGH) # / JUDICIAL MEMBER POONAM (+ ! ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. $ / / CIT 4. $ / ( )/ THE CIT(A) 5. -01 2 , & 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7% / GUARD FILE (+ $ / BY ORDER, 8 # / ASSISTANT REGISTRAR