Mrs. Kaushalya Muchhal, New Delhi V. ITO, New Delhi

ITA 5568/DEL/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1712 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 04-08-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 14-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR ANJULA JAIN
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO. - 5568 /DEL/201 4 (ASSESSMENT YEAR - 200 4 - 05 ) MRS. KAUSHALYA MUCHHAL, 157, TRANSPORT CENTRE, PUNJABI BAGH, NEW DELHI - 110010. PAN - AJGPM2118J ( APPELLANT) VS ITO, WARD - 26(4), NEW DELHI (RESPONDENT ) APPELLANT BY SH.SATISH AGGARWAL, C.A RESPONDENT BY DR.ANJULA JAIN, SR.DR ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 01.08.2014 OF CIT(A) - XXIV, NEW DELHI PERTAINING TO 2004 - 05 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS: - 1. THAT THE ORDER OF LEARNED CIT (A) IS ARBITRARY, BIASED AND BAD IN LAW AND ON FACTS OF THE CASE. 2. THAT THE LEARNED CIT (APPEALS) HAS GROSSLY ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER AS PROPER AND LEGAL FOR REOPENING THE ASSESSMENT UNDER SECTION 147/148 OF THE ACT AND IN NOT DECLARING THE ASSESSMENT NULL AND VOID. 3. THAT THE LEAR NED CIT (APPEALS) HAS GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS.4,19,680/ - ON CONJECTURES AND SURMISES BY MAKING SUO - MOTTO ENQUIRIES AT THE BACK OF THE APPELLANT AND WITHOUT APPRISING THE ASSESSEE OF FINDINGS OF HIS ENQUIRY BEFORE FINALIZING THE APPEA L ORDER AND THUS VIOLATING THE PRINCIPLES OF NATURAL JUSTICE. 4. THAT THE LEARNED CIT (APPEALS) HAS GROSSLY ERRED IN CONFIRMING THE INVOCATION OF THE PROVISIONS OF SECTION 68 OF THE ACT BY THE ASSESSING OFFICER. 5. THAT THE LEARNED CIT (APPEALS) HAS GRO SSLY ERRED IN CONFIRMING THE ADDITION OF RS.4,19,680/ - MADE UNDER SECTION 68 OF THE ACT BY THE ASSESSING OFFICER. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE THE ABOVE GROUNDS OF APPEAL AT THE TIME OF HEARING. DATE OF HEARING 04 .0 8 .2015 DATE OF PRONOUNCEMENT 09 . 1 0 .2015 I.T.A .NO. - 5568/ DEL/2014 PAGE 2 OF 4 2. ADDRESSING THE GRIEVA NCE POSED IN GROUNDS RAISED, THE LD. AR SUBMITTED THAT IN THE FACTS OF THE PRESENT CASE COPY OF TH E REASONS RECORDED WAS NEVER PROVIDED TO THE ASSESSEE. THE SAID ISSUE IT WAS SUBMITTED WAS AGITATED BEFORE THE AO AND ALSO THE CIT(A) . I NVIT ING ATTENTION TO THE ONE PAGED ORDER U/S 143(3)/147 DATED 15.12.2011 , I T WAS SUBMITTED THAT THE ASSESSEE WAS REQUIRED BY THE AO TO PROVIDE A BANK STATEMENT OF HER SAVING A/C NO.10872 MAINTAINED WITH CANARA BANK, RAJOURI GARDEN BRANCH, NEW DELHI . S INCE I T WAS NOT READILY AVAILABLE , ADJOURNMENT WAS SOUGHT WHICH WA S GRANTED . O N THE NEXT DATE DUE TO SEVERE PAIN IN THE ASSESSEE S TEETH THE ASSESSEE AGAIN COULD NOT BE REPRESENTED. THUS AN ADJOURNMENT WAS SOUGHT THROUGH CLERK OF THE COUNSEL . THE CLERK IT WAS SUBMITTED WAS DIRECTED TO SEEK AN ADJOURNMENT FROM THE INSPECTOR WHO WAS HAVING THE FILE AND THE INSPECTOR VERBALLY COMMUNICATED THAT THE HEARING WAS ADJOURNED TO 19.12.2011. ON THE SAID DATE, THE ASSESSEE IT WAS SUBMITTED FILED THE COPY OF THE BANK STATEMENT WHICH W AS NOT T AKEN ON RECORD. THE SAID BANK STATEMENT IT WAS SUBMITTED WAS ALSO SENT BY POST . THUS IN THESE CIRCUMSTANCES RELYING UPON TIN BOX CO. VS CIT [2001] 249 ITR 216 (SC), LACK OF OPPORTUNITY WAS PLEADED BEFORE THE CIT(A). T HE SE S U B M I S S I O N S IT WAS SUBMITTE D HAVE BEEN RECORDED IN THE IMPUGNED ORDER BUT HAVE NOT BEEN TAKEN INTO CONSIDERATION WHILE PASSING HIS ORDER. REFERRING TO TH E IMPUGNED ORDER AT PAGE 2 & 3 IT WAS SUBMITTED THAT THE ASSESSEE S SUBMISSIONS THAT COPY OF REASONS WAS NEVER PROVI DED IS FOUND RECORDED THERE IN AND THE SUPPORTING ARGUMENTS THAT ON INSPECTION OF THE RECORD BY THE LD. AR ON 22.11.2011 OF THE AO NEITHER THE COPY OF THE INVESTIGATION WING OF THE DEPARTMENT WAS ON RECORD NOR WERE THE REASONS RECORDED FOR RE - OPENING THE A SSESSMENT WERE ON RECORD. COPY OF THE REASONS RECORDED IT WAS SUBMITTED WERE ALSO NOT PROVIDED AND WERE SOUGHT ON 09.11.2011. T HESE SUBMISSIONS IT WAS SUBMITTED WERE MADE BEFORE THE CIT(A) AND THEY HAVE NOT BEEN DEALT WITH IN THE ORDER UNDER CHALLENGE. I N THESE CIRCUMSTANCES IT WAS HIS PRAYER THAT THE IMPUGNED ORDER BE SET ASIDE AND THE GROUNDS OF THE ASSESSEE BE ALLOWED. 3. THE L D. SR. DR, DR. ANJULA JAIN RELIED UPON THE IMPUGNED ORDER . ADDRESSING THE SUBMISSIONS FOUND RECORDED IN THE ORDER OF THE CIT(A ) , S HE WAS UNABLE TO CONTROVERT THE ARGUMENT THAT THEY HAVE NOT BEEN CONSIDERED BY THE CIT(A) . IN THE CIRCUMSTANCES IT WAS HER PRAYER THAT THE MATTER MAY BE RESTORED FOR A DETAILED FINDING ON FACTS AND LAW . I.T.A .NO. - 5568/ DEL/2014 PAGE 3 OF 4 4. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD, I AM OF THE VIEW THAT IN THE FACTS OF THE PRESENT CASE, THE IMPUGNED ORDER CANN OT BE UPHELD. A PERUSAL OF UNNUMBERED PAGE 5 TO 11 OF THE IMPUGNED ORDER SHOWS THAT THE SUBMISSIONS OF THE ASSESSEE HAVE BEEN REPRODUC ED DULY SUPPORTED BY THE STATEMENT OF FACTS FILED BEFORE THE CIT(A ) REITERATING THE SIMILAR POSITION WHICH BRINGS OUT THE FACTUAL POSITION OF WHAT TRANSPIRED ON 14.11.2013 IN THE ASSESSMENT PROCEEDINGS. FOR READY - REFERENCE, WE EXTRACT THE RELEVANT EXTRACT FROM THE IMPUGNED ORDER : - .. THE LD. AR FURTHER SUBMITTED THAT THE ASSESSING OFFICER HAD PASSED THE ASSESSMENT ORDER ON 15.12.2011 WITHOUT APPRECIATING THE FACT THAT ON 14 . 12 . 2011 THE C ASE W AS ADJOURNED VERBALLY BY THE INSPECTOR ON DIRECTION O F THE ASSESSING OFFICER FOR HEARI NG ON 19.12.2011. THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROC EED IN GS DIRECTED THE ASSESSEE TO FILE A COPY OF HER BANK STATEMENT OF SAVING BANK ACCOUNT NO. 10872 MAINTAINED BY HER WITH CANARA BANK, RAJA GARDEN BRANCH, NEW DELHI. THE BANK STATEMENT WAS NOT AVAILABLE WITH THE ASSESSEE AS THE SAME WAS QUIET OLD . THE BANK DELAYED IN SUPPLYING THE BANK STATEMENT ON THE GROUND THAT THE SAME WAS NOT READILY AVAILABLE WITH IT. THE CASE WAS ADJOURNED TO 14.12.2011. THE A.R COULD NOT APPEAR BEFORE THE ASSESSING OFFICER 14.12.2013 ON ACCOUNT OF PAIN IN HIS TEETH AND SENT HIS CLERK TO SEEK DATE FOR FILING BANK STATEMENT. THE ASSESSING OFFICER DIRECTED THE CLERK OF A.R TO OBTAIN DATE FROM HIS INSPECTOR WHO HAD THE FILE OF THE ASSESSEE. THE INSPECTOR HAS VERBALLY GRANTED ADJO URNM ENT TO 19.12.2011 WITHOUT RECORDING THE SAME ON THE FILE. THE A.R APPEARED BEFORE THE ASSESSING OFFICER FOR HEARING ON 19.12.2011 TO FILE THE REQUISITE DETAIL OF BANK STATEMENT TO COMPLY WITH THE AO'S DIRECTION WHICH STATEMENT WAS NOT ACCEPTED BY HIM. . 5. ON A PERUSAL O F THE FINDING O F THE IMPUGNED ORDER, IT IS SEEN THAT ON THIS ASPECT THERE IS NO FINDING. IT IS ALSO SEEN THAT THE ASSESSEE AT PAGE 3 AS PER SUBMISSIONS RECORDED IN THE IMPUGNED ORDER HAS STATED THAT COPY OF REASONS RECORDED SOUGHT WERE NEVER PROVIDED TO THE ASSESSEE. APART FROM THAT THE ASSESSEE HAS ALSO MADE OUT A CASE THAT INFACT NO REASONS WERE EVER REC O RDED AND THE ONLY INFORMATION COMMUNICATED TO THE ASS ESSEE WAS THE APPROVAL PERFORMA FOR OBTAINING APPROVAL OF CIT/ADDITIONAL CIT U/S 151(2) FOR INITIATING PROCEEDINGS U/S 148 OF THE ACT. AS OPPOSED TO THAT IT IS SEEN THAT IN THE FINDING RECORDED THE LD.CIT(A ) DOES NOT DEAL WITH THE CRUCIAL ISSUES NA MELY W H E T H E R THE COPY OF THE REASONS WAS PROVIDED TO THE ASSESSEE OR NOT IN THE BACKGROUND WHE R E AS PER ASSESSEE S SUBMISSIONS O N R E C O R D I NSPECTION OF THE RECORD CARRIED OUT BY THE LD.AR ON 22.12.2011 SHOWED T H AT COPY OF THE REASONS RECORDED WAS I.T.A .NO. - 5568/ DEL/2014 PAGE 4 OF 4 NOT AVAILABLE ON RECORD. IN VIEW OF THE C ONTRADICTION S ON CRUCIAL FACTUAL POSITION THE ISSUE IS RESTORED BACK TO THE FILE TO THE CIT(A) WITH THE DIRECTION TO RETURN A POSITIVE FINDING ON THE JURISDICTIONAL ISSUES APART FROM DEALING WITH THE OTHER ASPECTS AGITATED BY THE A SSESSEE ON THE ASSUMPTION OF JURISDICTION AND THEREAFTER DECIDE THE ISSUE ON MERIT IF IT NEED BE . THE ISSUE IS RESTORED WITH THE DIRECTION TO THE LD. CIT(A) TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 0 9 T H OF OCTOBER , 2015. S D / - (DIVA SINGH) JUDICIAL MEMBER DATED: 0 9 / 1 0 /2015 * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI