MADAN MOHAN SHARMA, MEERUT V. ITO, WARD- 1(4), MEERUT

ITA 5581/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5376 (ITAT-DELHI)
• Duration Of Justice: 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 28-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MAHESH TYAGI
• Keywords: Opportunity of being heard
• Section: 147; 148; 56; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCHES (CAMP AT MEERUT) BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.5580/DEL./2018 (ASSESSMENT YEAR : 2012-13) ITA NO.5581/DEL./2018 (ASSESSMENT YEAR : 2013-14) ITA NO.5582/DEL./2018 (ASSESSMENT YEAR : 2015-16) SHRI MADAN MOHAN SHARMA, VS. ITO, WARD 1 (4), 27, NEHRU ROAD, MEERUT. MEERUT. (PAN : DANPS2288N) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MAHESH TYAGI, ADVOCATE REVENUE BY : SHRI S.S. RANA, CIT DR SHRI MUNSHI RAM BIHAGRA, SENIOR DR DATE OF HEARING : 10.01.2019 DATE OF ORDER : 29.01.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : SINCE COMMON QUESTIONS OF FACTS AND LAW HAVE BEEN R AISED IN THE AFORESAID APPEALS, THE SAME ARE BEING DISPOS ED OFF BY WAY OF CONSOLIDATED ORDER TO AVOID REPETITION OF DISCUSSIO N. ITA NO.5580-5581-5582/DEL./2018 2 2. THE APPELLANT, SHRI MADAN MOHAN SHARMA (HEREINAF TER REFERRED TO AS THE ASSESSEE) BY FILING THE PRESEN T APPEALS, SOUGHT TO SET ASIDE THE IMPUGNED ORDER ALL DATED 19.06.2018 Q UA THE ASSESSMENT YEARS 2012-13, 2013-14 & 2015-16 ON THE IDENTICAL GROUNDS INTER ALIA THAT :- 1. THAT THE ORDER AS PASSED BY THE AUTHORITIES BEL OW IS ARBITRARY, UNJUST, ILLEGAL AND BAD IN LAW, BECAUSE THE AUTHORITIES BELOW HAS ERRED IN LAW AS WELL AS IN FACTS IN PASSI NG THE ORDERS. 2. THAT THE ORDER AS PASSED BY THE LEARNED ITO IS I LLEGAL ON THE FACTS AND CIRCUMSTANCES OF THE CASE, WHICH HAS WRONGLY BEEN CONFIRMED BY THE LEANED CIT(A), IGNORING THE EVIDEN CES PRODUCED BEFORE HIM AND WITHOUT GIVING THE PROPER O PPORTUNITY OF BEING HEARD. 3. THAT THE LEARNED ITO/ CIT(A) WAS NOT JUSTIFIED I N ASSESSING THE INCOME OF RS.08,81,556/- IN AYS 2012- 13 & 1013- 14 AND RS.13,91,556/- IN AY 2015-16 AS INCOME FROM OTHER SOURCES U/S 56,WHICH WAS SHOWN BY THE ASSESSEE AS A GRICULTURE INCOME AS PER HIS ESTIMATE/ACCOUNT PRODUCED FOR A.Y . 2014-15, WITHOUT ANY BASIS OR MATERIAL ON RECORD AND WITHOUT ANY CREDIT FOUND IN THE BOOKS OF ACCOUNTS AND/OR RECORDS AS MA INTAINED BY THE ASSESSEE. 4. THAT THE LEARNED AUTHORITIES BELOW WAS NOT JUSTI FIED IN, ESTIMATING THE AGRICULTURE INCOME ON THE BASIS OF R EPORT OF TEHSILDAR AND DEPUTY DISTRICT MAGISTRATE FOR THE CU RRENT YEAR I.E. F.Y. 2017-18, NOT RELATED TO THE RELEVANT YEAR, AND HAS NOT BEEN CONFRONTED TO THE ASSESSEE 5. THAT THE LEARNED CIT(A) WAS ALSO NOT JUSTIFIED I N TREATING THE INCOME, ASSESSED BY ITO AS INCOME FROM OTHER SO URCES, WITHOUT ANY BASIS OR MATERIAL ON RECORD. THERE IS N O CASH CREDIT/DEPOSIT OF ANY INCOME IN ANY ACCOUNT OF THE ASSESSEE THE AGRICULTURE INCOME WAS SHOWN BY THE ASSESSEE ON EST IMATE/ ROUGH BASIS ONLY FOR RATE PURPOSE OF OTHER INCOME, WHICH WAS ASSESSED U/S 56 ILLEGALLY. 3. BRIEFLY STATED THE IDENTICAL FACTS FOR ADJUDICAT ION OF ALL THE AFORESAID THREE APPEALS OF ASSESSEE PERTAINING TO A SSESSMENT YEARS ITA NO.5580-5581-5582/DEL./2018 3 2012-13, 2013-14 & 2015-16 AT HAND ARE : ASSESSING OFFICER REOPENED THE ASSESSMENT UNDER SECTION 147 OF THE IN COME-TAX ACT, 1961 (FOR SHORT THE ACT) BY WAY OF ISSUING NOTICE U/S 148 OF THE ACT BY NOTICING THAT THE ASSESSEE HAS SHOWN HUGE AG RICULTURAL INCOME OUT OF A MEAGER LAND OF 77.3055 BIGHAS WHICH WAS ASSESSED AT RS.6,18,444/- IN AY 2014-15 AND THE REMAINING AM OUNT OF RS.13,81,556/- CLAIMED AS AGRICULTURAL INCOME WAS T REATED AS INCOME FROM OTHER SOURCES. ASSESSEE HAS SHOWN AG RICULTURAL INCOME OF RS.15,00,000/- IN AYS 2012-13 & 2013-14 A ND RS.20,00,000/- IN AY 2015-16. AO, AFTER ISSUING TH E NOTICE U/S 148 OF THE ACT AND DUE TO NON-COOPERATION OF THE AS SESSEE, PROCEEDED TO FRAME THE ASSESSMENTS U/S 144 OF THE A CT IN AYS 2012-13, 2013-14 & 2015-16. 4. ASSESSEE CARRIED THE MATTER BY WAY OF AN APPEAL BEFORE THE LD. CIT (APPEALS) WHO HAS CONFIRMED THE ADDITION BY DISMISSING THE APPEALS. FEELING AGGRIEVED, THE ASSESSEE HAS C OME UP IN APPEALS BEFORE THE TRIBUNAL. 5. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO.5580-5581-5582/DEL./2018 4 6. THE LD. AR FOR THE ASSESSEE CHALLENGED THE IMPUG NED ORDER PASSED BY LD. CIT (A) ON THE SOLE GROUND THAT ADEQU ATE OPPORTUNITY OF BEING HEARD IS NOT GIVEN TO THE ASSESSEE BY THE AO AND THE ASSESSEE BEING BED-RIDDEN DUE TO SICKNESS HAS FAILE D TO DEFEND THE ASSESSMENT AND HIS COUNSEL, SHRI R.K. JAIN HAS NOT APPEARED BEFORE THE CONCERNED AUTHORITIES NOR FILED ANY PAPERS NOR REPLIED ANY QUERIES MADE BY THE INCOME-TAX AUTHORITIES RESULTIN G INTO ASSESSMENT ORDERS PASSED U/S 144/147 OF THE ACT. HOWEVER, ON THE OTHER HAND, LD. DR FOR THE REVENUE DEFENDED THE IMP UGNED ORDERS PASSED BY THE AO/LD. CIT (A) ON THE GROUND THAT THE ASSESSEE HIMSELF IS NOT SERIOUS TO PARTICIPATE IN THE ASSESS MENT AS WELL AS APPELLATE PROCEEDINGS, NO FURTHER OPPORTUNITY SHOUL D BE GRANTED AND RELIED UPON THE DECISION OF THE LD. CIT (A). 7. HOWEVER, THE LD. AR FOR THE ASSESSEE BROUGHT ON RECORD DOCUMENTS FROM PAGES 1 TO 26 OF THE PAPER BOOK TO P ROVE THE MEDICAL HISTORY OF THE ASSESSEE THAT HE WAS LYING S ICK SINCE 2008 AND HAS BEEN CONSTANTLY GETTING TREATMENT FROM DIFF ERENT DOCTORS WHICH SHOW THAT ASSESSEE WAS LYING SICK. EVEN, THE PERUSAL OF THE ASSESSMENT ORDERS PASSED BY THE AO SHOWS THAT ONLY ONE NOTICE U/S 148 OF THE ACT WAS ISSUED AND CLAIMED TO HAVE REGUL ARLY SENT LETTERS TO THE ASSESSEE BUT WITHOUT PROCURING HIS PRESENCE, AO PROCEEDED TO FRAME THE ASSESSMENTS U/S 144 OF THE ACT STATING THAT THE CASE IS ITA NO.5580-5581-5582/DEL./2018 5 TIME BARRED IN NATURE AND AFTER ESTIMATING THE AGRI CULTURAL INCOME OF THE ASSESSEE, ASSESSED THE REMAINING INCOME FROM OTHER SOURCES. 8. BARE PERUSAL OF THE ASSESSMENT ORDER AS WELL AS ORDERS PASSED BY THE LD. CIT (A) GO TO PROVE THAT ADEQUATE OPPORT UNITY OF BEING HEARD HAS NOT BEEN GIVEN TO THE ASSESSEE BY THE AO AND DURING THE APPELLATE PROCEEDINGS, COUNSEL ENGAGED BY THE ASSES SEE HAS NOT PROVIDED ANY DOCUMENTS TO THE LD. CIT (A) TO REACH AT THE LOGICAL CONCLUSION. WE ARE OF THE CONSIDERED VIEW THAT BEC AUSE OF INEFFICIENCY OR NEGLIGENCE OF THE COUNSEL, THE ASSE SSEE CANNOT BE MADE TO SUFFER AND HE SHOULD BE GIVEN ADEQUATE OPPO RTUNITY TO DEFEND HIS CASE WHO IS ADMITTEDLY OWNER OF AGRICULT URAL LAND MEASURING 77.3055 BIGHAS AND IT IS FOR THE ASSESSEE TO EXPLAIN AS TO WHAT CROPS HE WAS GROWING AND WHAT WAS HIS INCOME B ECAUSE AGRICULTURAL INCOME DEPENDS UPON VARIOUS REASONS AS SOMETIMES A FARMER IS ENGAGED IN SOWING AND REAPING THE CASH CR OPS AND HIS INCOME USED TO BE MORE AND IN CASE THE FARMER IS IN TO SOWING THE SEASONAL CROP LIKE WHEAT AND PADDY, HIS INCOME CERT AINLY WOULD BE LESS. 8. KEEPING IN VIEW THE FACT THAT THE ASSESSEE WAS C ONFINED TO BED DUE TO SICKNESS, HE COULD NOT DEFEND HIS CASE B EFORE AO AS WELL AS LD. CIT (A) AND IN THESE CIRCUMSTANCES, CON TENTIONS RAISED BY THE LD. DR ARE NOT SUSTAINABLE, HENCE IMPUGNED O RDER PASSED BY ITA NO.5580-5581-5582/DEL./2018 6 THE AO/CIT (A) FOR AYS 2012-13, 2013-14 & 2015-16 A RE HEREBY SET ASIDE AND THE CASES ARE REMANDED BACK TO AO TO DECIDE AFRESH AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. 9. RESULTANTLY, ALL THE THREE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 29 TH DAY OF JANUARY, 2019. SD/- SD/- (N.S. SAINI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 29 TH DAY OF JANUARY , 2019 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), MEERUT. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.