Sh. Tarlochan Singh, Ludhiana V. ACIT, Circle -II, Ludhiana

ITA 523/CHANDI/2022

• Counselvise Citation: [2023] 101 COUNSELVISE.COM (IT) 9968 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-11-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 13-11-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 21-06-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VIPAN KUMAR GUPTA
• Section: 148; 22

Judgement Text

आयकर अपील य अ धकरण,च डीगढ़ यायपीठ , च डीगढ़ IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH ‘SMC’ CHANDIGARH BEFORE: SHRI A.D.JAIN, VICE PRESIDENT आयकर अपील सं./ ITA No. 523/CHD/2022 नधा रण वष / Assessment Year : 2011-12 Shri Tarlochan Singh, House No.13, Village Bajra, Post Basti Jodhewal, Rahon Road, Ludhiana. बनाम VS The ACIT, Circle-II, Ludhiana. थायी लेखा सं./PAN /TAN No: DGDPS2156F अपीलाथ /Appellant यथ /Respondent नधा रती क ओर से/Assessee by : Shri Vipan Kumar Gupta, CA राज व क ओर से/ Revenue by : Shri Dharam Vir, JCIT, Sr.DR तार"ख/Date of Hearing : 14.11.2023 उदघोषणा क तार"ख/Date of Pronouncement : 16.11.2023 HYBRID HEARING आदेश/ORDER This i s assesse e's appeal for a ssessment yea r 2010 -11 against the or der dated 23.0 2.20 22 pa sse d by the l d. CI T(A),De lhi-44. 2. The asse ssee has raised the fo llowi ng grou nds of ap pe al : 1. That the Learned Commissioner of Income Tax (Appeals), Delhi-44 has erred in dismissing the appeal of the assessee without considering the reply filed by the assessee and ignoring the evidences filed by the assessee. 2. That the Learned CIT (A), Delhi-44 has erred in confirming the action of the Assessing Officer in reopening of the case u/s 148 of the IT Act, ITA 523/CHD/2022 A.Y.2011-12 Page 2 of 5 1961 as there was no reason to believe that the income of the assessee has escaped assessment and without sufficient material on the record. 3. That the Learned CIT (A), Delhi-44 has also erred in confirming the action with regard to reopening of the case without considering the fact that Assessing Officer has relied upon the AIR Information and has not applied his own mind. 4. That the Learned CIT (A), Delhi-44 has also erred in confirming the action with regard to reopening of the case as there was mechanical approval of the Pr. CIT-1, Ludhiana u/s 151 of the IT Act, 1961 and are liable to be quashed in view of the judgment of Hon'ble Apex Court in the case of S. Goyanka Lime and Chemical Ltd. as reported in 237 Taxman 0378 (SC). 5. That the Learned CIT (A), Delhi-44 has erred in confirming the addition of Rs. 12,57,445/-without any basis. 3. The re i s a delay of 5 4 d ays in fi ling the appe al. A s per the appl ica tion for condon ati on of dela y accompa nied by the affida vit of the assesse e, the appe al before the ld. CI T( A) wa s file d by the asse ssee through hi s e arl ie r counsel; tha t the sa id counse l me nt ione d his e-ma il ad dre ss and mobile nu mber in the For m No.3 5; tha t all t he e-mail s a nd noti ce s re la ting to the ap pe al before ld. C I T(A) were sent at the e-ma il add ress an d mobile numbe r of the c ounsel, as men ti oned in the For m N o.35 ; th at there was a disp ute re gar ding th e profe ss ional fee of the sai d coun se l and the counse l did not reply to the notices rece ive d from the ld. CI T( A) an d the ap peal wa s de ci ded ex-pa rte; that the appea l order wa s also delive red at the e -ma il a ddress of the sai d coun se l; th at i t was a rou nd the 10 t h of June , 2 0 22 th at the coun se l ca lle d th e asse ssee to take his record and it was at that ti me that the as se ssee ca me to k now ab ou t the di sposal of the ITA 523/CHD/2022 A.Y.2011-12 Page 3 of 5 appea l be fore the ld. CI T( A) again st t he assesse e; that it was in these facts th at the de la y in filin g the present appeal occur red, with out any mala fide intention on the part of the assesse e, due to re asons be yon d hi s c ontrol . 4. Considerin g the fa cts conta ined in the app lica tion for cond ona tio n of delay, as sup porte d by the a ffi davi t of the asse ssee , fi ndi n g that the a sse ssee could not ha ve gai ne d anyt hin g b y del ayin g the fili ng of hi s own a ppe al, the delay incu rre d i n fi lin g the ap pe al i s condone d, fin d ing tha t the asse ssee was visi te d with by su ffi cie nt cause that p re ve nted him from fi ling the ap pe al in time . 5. Apropos the meri ts o f the c ase , th e ld. CI T(A) has obse rve d in the i mpu gned order that t hough notice s date d 21.01 .20 21, 17.01.2 022 , 2 8.01.2 022 an d 02 .02.202 2 were s erve d on the asse ssee through e-fil ing Porta l, the a ssesse e did not c ome present be fore the ld. CI T(A) a nd he did not sub mi t a ny expla na tio n or e vidence in sup por t of the sour ce of cash dep osi ts of Rs.12, 50,000 / - in his b ank a ccount; tha t as as certaine d fro m the de partme nt a l da ta ba se , the asse ssee had made an appl ica tion to a v ail t he dire ct ta x 'Vi vad Se Vi sh was S che me , 2020 ’ an d he ha d bee n issued For m No. 3, sh owing that the addi tion ha d bee n accepted b y th e assesse e; that however, the asse ssee had not sub mi tted copy of For m N o.5 i ss ue d un der the 'Vivad Se Vish wa s Sche me' in the appellate procee dings before ITA 523/CHD/2022 A.Y.2011-12 Page 4 of 5 the ld. CI T( A) ; that as such , it wa s cle ar th at the assesse e was not inte reste d in pu rsu ing the ap peal. It wa s in this ma nner, that the ld. CI T(A ) dismissed the a ppe al file d by the assesse e ex- parte q ua the as sesse e. 6. The l d. C oun se l for the assesse e ha s reite ra te d th e stand take n i n the ap p lica tion f or cond onation of dela y. I t h as bee n averred th at the CI T( A) erre d i n d ismi ssi ng the ap pe al ex-pa rte qua the a sse ssee without conside ring the repl y filed by the asse ssee and ignori ng the evid e nces file d by the a ssesse e. Re lia nce ha s a ls o be en place d on the affidav it o f the a ssessee , date d 25 .08 .20 2 3, where in, w hil e reite ra ting the stan d of the asse ssee a s ta ke n in the appl ica tion for condo nat ion of de la y, it has again bee n st ate d that a ll the e -ma ils a nd notices re la ting to the appea l before the ld. CIT(A) were sent at the e-mail address and mobile number of the earlier counsel for the assessee, with whom, a dispute regarding professional fee had arisen and since the assessee did not pay the addition al fee demanded b y the sai d counse l, the coun se l did not r e ply to the not ic es receive d from the ld. CI T(A) and the a p pe al w a s decide d e x-pa r te q ua the as se ss ee. 7. In vie w of the a bove facts and circu mst ances, we ar e of the cons idered view that due to the sa me , the ma tte r went unre presented be fore the ld. CI T( A), for no fau lt of the a ssessee . I t is trite law t ha t no one can be conde mned u nhe a rd. As su ch, the asse ssee , who has be en de prived of due oppor tunity of ITA 523/CHD/2022 A.Y.2011-12 Page 5 of 5 expla in ing its c ase before the CI T( A), re quire s to be gra nted s uch opportunity. Acc ordi ngly, the mat ter is re ma nde d to t he file of the ld. CI T( A) to be de cided fres h in accor dan ce wit h la w, on affording ade qua te opportuni ty of he aring to the assessee . The asse ssee , no d oubt, sha ll coope rate in the fres h proce edings before the ld. C I T(A). A ll pleas avai la ble unde r the law sh all rema in so ava ila b le to t he assesse e. O rdere d ac cord ingl y. 8. In the result, for sta tistica l p urp os es, the appeal is tre ate d as a llowe d. Orde r p ron oun ced on 16 t h Novemb e r,2023 . Sd /- (A.D.JAIN ) VICE PRESIDENT “Poonam” आदेश क琉 灹ितिलिप अ灡ेिषत/ Copy of the order forwarded to : 1. अपीलाथ牸/ The Appellant 2. 灹瀄यथ牸/ The Respondent 3. आयकर आयु猴/ CIT 4. िवभागीय 灹ितिनिध, आयकर अपीलीय आिधकरण, च瀃डीगढ़/ DR, ITAT, CHANDIGARH 5. गाड榁 फाईल/ Guard File आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar