Satish Kumar, Kurukshetra V. ITO, W-3, Kurukshetra

ITA 54/CHANDI/2018

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3930 (ITAT-CHANDIGARH)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 18-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N D GUPTASR DR
• Assessee Lawyers: D K GOYAL

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH B CHANDIGARH !, ' # $ . .. . & , '( # BEFORE: SMT. DIVA SINGH, JM & DR. B.R.R.KUMAR, AM ITA NO. 54/CHD/2018 ASSESSMENT YEAR : 2009-10 SHRI SATISH KUMAR VILLAGE,-BIBIPUR, P.O.MURTZAPUR, TEHSIL-PEHOWA, KURUKSHETRA. VS THE ITO, WARD-3, KURUKSHETRA. PAN NO: EHRPK9899F APPELLANT RESPONDENT !' ASSESSEE BY : SHRI D.K.GOYAL #!' REVENUE BY : SHRI N.D. GUPTA,SR.DR $ %! & DATE OF HEARING : 17.07.2018 '()*! & D ATE OF PRONOUNCEMENT : 03.10.2018 ')/ ORDER PER DIVA SINGH THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASS AILING THE CORRECTNESS OF THE ORDER DATED 24.11.2017 OF CIT(A) KARNA L PERTAINING TO 2009-10 ASSESSMENT YEAR ON VARIOUS GROUNDS CHALLENGING THE ORDER ON MERITS. 2. HOWEVER, AT THE TIME OF HEARING, AN ADJOURNMENT APPLIC ATION WAS MOVED ON BEHALF OF THE COUNSEL SEEKING TIME. SINCE THE ISS UES RAISED IN GROUND NO. 2 AND 4 OF THE PRESENT APPEAL COULD BE DECIDE D ON THE BASIS OF MATERIAL AVAILABLE ON RECORD, IT WAS DEEMED APPROPRIATE TO PROCEED WITH THE PRESENT APPEAL EX-PARTE QUA THE ASSESSEE APPELLAN T ON MERITS. ACCORDINGLY, A PASS OVER WAS GIVEN TO ENABLE THE SR.DR TO PREPARE . 3. IN THE PASS OVER, THE ASSESSEE WAS REPRESENTED BY MR. D.K.GO YAL. 4. THE RECORD SHOWS THAT THE ASSESSMENT ORDER WAS P ASSED U/S 144/147 OF THE ACT WHEREIN THE ASSESSEE AS PER RECORD BASED ON SOME ADVISE OF SOME COUNSEL REQUESTED FOR THE REASONS RECORD ED AND INSISTED UPON ADHERENCE TO THE PROCEDURES SET OUT BY THE STA TUTE FOR BRINGING TO TAX THE DEPOSIT OF RS. 1,38,50,000/- NOTICED BY THE DEPART MENT IN HIS ITA 54/CHD/2018 A.Y. 2009-10 PAGE 2 OF 3 BANK ACCOUNT. SINCE, APART FROM THIS, OBJECTION RECORDE D IN THE ASSESSMENT ORDER, THE ASSESSEE ULTIMATELY REMAINED UNRE PRESENTED, IT LEAD TO THE AO TO MAKING THE ADDITION IN HIS HANDS. 5. THE ASSESSEE CARRIED THE ISSUE IN APPEAL BEFORE THE CI T(A) WHEREIN RELYING ON SOME EVIDENCES TO EXPLAIN THAT THE DEPOSITS WERE FROM THE AGRICULTURAL LAND WHICH WAS BEING SOLD. THE CIT(A) REJECTED THE FRESH EVIDENCE HOLDING THAT SINCE SUFFICIENT OPPORTUNITY HAD BEEN PROVIDED BY THE AO, THE EVIDENCE COULD NOT BE ADMITTED. IT WAS ALSO NOTED BY HIM THAT THE ASSESSEE HAD ALSO FAILED TO MOVE A PROPER APPLICATION JUSTIFYING THE ADMISSION OF THE EVIDENCE. COMMENTING ON THE EVIDENCES, IT WAS ALSO NOTED BY HIM THAT THERE IS NOTHING IN THE EVIDENCES TO S HOW THAT THE DEPOSITS WERE EXPLAINABLE AS THE BOOKS OF ACCOUNT ARE N OT BEING MAINTAINED. CONSEQUENTLY, THE ASSESSEE COULD NOT TAKE S HELTER BEHIND THE ARGUMENT. 6. THE LD. SR.DR RELIES ON THE ORDER. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. A PERUSAL OF THE REPLY OF THE ASSESSEE EXTRACTE D AT PAGE 5-6 OF THE IMPUGNED ORDER SHOWS THAT IT HAS BEEN PLEADED THAT THE ASSESSEE CLAIMS TO BE AN AGRICULTURIST, NOT CONVERSANT WITH THE INCOME TAX PROCEE DINGS AND BEING ILLITERATE, IT IS STATED HE WAS UNAWARE WHETHER THE LA WYER APPOINTED BY HIM WAS ATTENDING TO THE PROCEEDINGS AND IT WAS ONLY WHEN THE ASSESSMENT ORDER WAS RECEIVED, THE ASSESSEE BECAME AW ARE. ACCORDINGLY, IT HAS BEEN PLEADED THAT THE ASSESSEE WAS PREVENTED T O FILE THE NECESSARY EVIDENCE BEFORE THE AO DUE TO NEGLIGENCE/ADVERSE TH INKING OF THE COUNSEL. THUS, WE FIND THAT THE ASSESSEE ADMITTEDLY WAS PREVENTE D FROM PRODUCING NECESSARY EVIDENCE AT THE TIME OF HEARING DUE TO NON C O-OPERATION ETC. OF THE COUNSEL. IT IS SEEN THAT THE CIT(A) WHILE PASSING THE O RDER HAS NOT ADDRESSED THESE SUBMISSIONS DATED 25.10.2017 FOUND EXTRA CTED IN THE ORDER AT PAGE 5-6 OF THE ORDER. ACCORDINGLY, AFTER CONSID ERING THE SUBMISSIONS OF THE PARTIES WHEREIN NO JUSTIFICATION COULD BE GIVEN BY THE SR.DR IN SUPPORT OF THE ORDER PASSED, THE IMPUGNED ORDER IS SET ASIDE AND THE ISSUES ARE RESTORED BACK TO THE FILE OF THE CIT(A) WITH THE DIRECTION TO ADMIT THE FRESH EVIDENCES SOUGHT TO BE RELIED UPON ON B EHALF OF THE ASSESSEE AND PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. 7.1 THE ASSESSMENT ORDER PAGE 6 PARA 8 SHOWS THAT ON 16.10.2016, ASSESSEE WAS REPRESENTED BY SHRI G SAGAR, ADVOCATE. W HEN THESE FACTS ITA 54/CHD/2018 A.Y. 2009-10 PAGE 3 OF 3 ARE TAKEN INTO CONSIDERATION WITH THE REPLY DATED 25.10 .2017 EXTRACTED IN THE IMPUGNED ORDER, IT IS SEEN THAT THE FOLLOWING SUBMISSIONS AT PAGE 5 OF THE ORDER SUPPORT THE CLAIM : THAT HE IS AN AGRICULTURIST AND IS NOT CONVERSANT WITH THE INCOME TAX ACT/PROCEEDINGS. SO WHEN HE RECEIVED NOTICE HE ENG AGED LAWYER AT KURUKSHETRA AND GIVEN HIM ALL THE DOCUMENTS ASKED BY THE LAWYER AND HE HAD ALSO AUTHORIZED HIM TO APPEAR BEFORE AO OF KURUKSHETRA. THE ASSESS EE BEING ILLITERATE COULD NOT GUESS IF THE LAWYER IS ATTENDING THE ASSESSMENT PRO CEEDINGS OR SUBMITTING THE DOCUMENTS HE HAD OBTAINED FROM THE ASSESSEE. 8. WE MAKE IT CLEAR THAT THE SUFFICIENCY OF THE EVIDENCES IS NOT BEING ADDRESSED BY US AND DEEM IT APPROPRIATE TO NOTE THAT IN CASE THE FRESH EVIDENCE IS FOUND TO BE INSUFFICIENT AND INCOMPLETE, WE SEE N O IMPEDIMENT WHY THE SAID FACT CANNOT BE COMMUNICATED TO THE ASSESS EE AND OPPORTUNITY TO MAKE GOOD ITS CLAIMS BE PROVIDED AT THE A PPELLATE STAGE FOLLOWING THE PROCEDURE BY THE CIT(A). ACCORDINGLY, IN TERM S OF THE SAID DECISION, IMPUGNED ORDER IS SET ASIDE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03.10. 2018. SD/- SD/- ( . .. . & ) ( ! ) (DR. B.R.R. KUMAR) (DIVA SINGH) '( #/ ACCOUNTANT MEMBER ' #/ JUDICIAL MEMBER + , (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT - 2. THE RESPONDENT - 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE (+ $ BY ORDER, ; # ASSISTANT REGISTRAR