M/S GURFATEH FILMS, MOHALI V. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-II, JALANDHAR

ITA 50/ASR/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7107 (ITAT-AMRITSAR)
• Duration Of Justice: 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 16-01-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 02-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARVINDER KAUR
• Keywords: Search and seizure; Opportunity of being heard
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CAMP BENCH AT JALANDHAR BEFORE SH. N. K. SAINI, HONBLE VICE PRESIDENT AND SH. RAVISH SOOD, JUDICIAL MEMBER ITA NO.50/ASR./2018 : ASSTT. YEAR : 2013-14 M/S GURFATEH FILMS, 4140 SECTOR 68, MOHALI VS DCIT, CENTRAL CIRCLE-II, JALANDHAR (APPELLANT) (RESPONDENT) PAN NO. AAKFG9328D ITA NO.51/ASR./2018 : ASSTT. YEAR : 2013-14 GURFATEH FILMS & SIPPY GREWAL PRODUCTION PVT. LTD., 1013, SECTOR 67, MOHALI VS DCIT, CENTRAL CIRCLE-II, JALANDHAR (APPELLANT) (RESPONDENT) PAN NO. AAECG8982G ASSESSEE BY : SH. JATINDER SHARMA, CA REVENUE BY : SMT. PARVI NDER KAUR, CIT DR DATE OF HEARING : 16.01.2019 DATE OF PRONOUNCEMENT : 17.01.2019 ORDER PER N. K. SAINI, VICE PRESIDENT: THESE TWO APPEALS BY THE ASSESSES ARE DIRECTED AGAI NST THE SEPARATE ORDERS EACH DATED 10.11.2017 OF CIT( A)-5, LUDHIANA. 2. SINCE THE ISSUE INVOLVED IS COMMON IN BOTH THESE APPEALS WHICH WERE HEARD TOGETHER SO THESE ARE BEING DISPOSED OFF BY T HIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. ITA NO. 50/ASR./2018 ITA NO. 51/ASR/2018 2 3. THE MAIN GRIEVANCE OF THE ASSESSEE VIDE GROUND N O. 1 RELATES TO THE EX PARTE ORDER PASSED BY THE LEARNED CIT(A) WITHOUT CONSIDE RING THE MATERIAL ON RECORD. THE SAID GROUND READ AS UND ER:- I. THAT ON THE FACTS AND IN LAW, LEARNED COMMISSIO NER OF INCOME TAX (APPEALS-5) LUDHIANA ERRED IN SUMMARILY AND MEC HANICALLY SUSTAINING THE ASSESSMENT ORDER OF ASSESSING OFFICE R WHICH IS ARBITRARY, CONTRARY TO LAW, EQUITY, JUSTICE AND FAC TS AND MATERIAL ON RECORD, WITHOUT CONSIDERING THE SUBMISSIONS MADE BE FORE THE ASSESSING OFFICER. 4. FACTS OF THE CASE IN BRIEF ARE THAT A SEARCH AND SEIZURE OPERATION UNDER SECTION 132 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS CARRIED OU T ON 5.12.2012 AND CERTAIN INCRIMINATING MATERIAL WAS FOUND AND SEIZED . THE ASSESSEE FILED THE RETURN OF INCOME ON 9.3.2015 DECLARING AN INCOME OF RS. 46,25,000/-. HOWEVER THE ASSESSMENT WAS FRAMED BY T HE AO AT AN INCOME OF RS. 2,29,84,698/- BY MAKING THE VARIOUS A DDITIONS. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LEARNED CIT(A) WHO DISMISSED THE APPEAL IN LEMINE BY OBSERV ING THAT THE FINAL OPPORTUNITY VIDE NOTICE DATED 9.10.2017 FOR H EARING ON 23.10.2017 WAS GIVEN TO THE ASSESSEE THEREAFTER THE NOTICE WAS SENT FOR HEARING ON 8.11.2017 BY REGISTERED POST BUT NON E APPEARED ON BEHALF OF THE ASSESSEE. 6. NOW THE ASSESSEE IS IN APPEAL. 7. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE LEARNED CIT(A) HAD NOT CONSIDERED THE RELEVANT MATERIAL WHI CH WAS ALREADY AVAILABLE ON THE RECORD. IT WAS ALSO SUBMITTED THAT PROPER OPPORTUNITY OF BEING HEARD WAS NOT PROVIDED BY THE LEARNED CIT(A). ITA NO. 50/ASR./2018 ITA NO. 51/ASR/2018 3 8. IN HIS RIVAL SUBMISSIONS, THE LEARNED DR SUBMITT ED THAT THE ASSESSEE WAS NOT COOPERATIVE AND DID NOT APPEAR WHE NEVER THE CASE WAS LISTED FOR HEARING. SO THERE WAS NO ALTERNATIVE EXCEPT TO DISMISS THE APPEAL OF THE ASSESSEE FOR NON PROSECUTION. 9. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN TH E PRESENT CASE, IT IS AN ADMITTED FACT THAT THE LEARNED CIT(A) DISMISS ED THE APPEAL OF THE ASSESSEE EX PARTE IN LEMINE AND HAD NOT DISCUSSED THE ISSUES ON MERIT. IT IS WELL SETTELED THAT NOBODY SHOULD BE CO NDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . WE, THEREFORE, DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE LEARNED CIT(A) TO BE DECIDED AFRESH ON MERIT IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. THE FACTS INVOLVED IN ITA NO. 51/ASR/2018 ARE SIMILAR TO THE FACTS IN ITA NO. 50/ASR/2018 (SUPRA) THEREFORE, OUR FINDINGS GIVEN IN THE FORMER PART OF THIS ORDER SHALL APPLY MUTATIS MUTANDIS FOR THIS ASSESSE ALSO. 10. IN THE RESULT, THE APPEALS OF THE ASSESSEES AR E ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 17/01/2019). SD/- SD/- (RAVISH SOOD) (N. K. SAINI) JUDICIAL MEMBER V ICE PRESIDENT DATED: 17/01/2019 *SH* ITA NO. 50/ASR./2018 ITA NO. 51/ASR/2018 4 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR DATE INITIAL 1. DRAFT DICTATED ON 16.01.2019 PS 2. DRAFT PLACED BEFORE AUTHOR 17.01.2019 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.