Smt. Jiya Devi Sharma, JODHPUR V. DCIT, Central Circle-2, Jodhpur

ITA 588/JODH/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6353 (ITAT-JODHPUR)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 28-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Opportunity of being heard; Principle of natural justice; Set aside; Audi alteram partem
• Section: 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI N.K.SAINI, VICE PRESIDENT AND SHRI N.K. CHOUDHRY, JUDICIAL MEMBER ITA NOS. 583 TO 587/JODH/2018 (ASSESSMENT YEARS -2005-2006 & 2006-07, 2010-11 & 2 011-12, 2013-14) SH MURLIDHAR SHARMA, 221 SHYAM NAGAR SCHEME, PAL LINK ROAD, JODHPUR VS THE DCIT, CENTRAL CIRCLE-2, JODHPUR (APPELLANT) (RESPONDENT) PAN: AOLPS6649J ITA NO. 588/JODH/2018 (ASSESSMENT YEAR -2008-09) SMT. JIYA DEVI SHARMA, 221 SHYAM NAGAR SCHEME, PAL LINK ROAD, JODHPUR VS THE DCIT, CENTRAL CIRCLE-2, JODHPUR (APPELLANT) (RESPONDENT) PAN: AWDPS1278H REVENUE BY SH. P.K. SINGI, DR ASSESSEE BY SHRI AMIT KOTHARI, CA DATE OF HEARING 01.05.2019 DATE OF PRONOUNCEMENT 01.05.2019 O R D E R 2 PER N.K. SAINI, V.P. : THESE APPEALS BY THE ASSESSEES ARE DIRECTED AGAINST THE SEPARATE ORDERS EACH DATED 15.11.2018 OF THE CIT(A)-2, UDAIPUR. 2. SINCE THE ISSUE INVOLVED IS COMMON IN THESE APPE ALS WHICH WERE HEARD TOGETHER, SO THESE ARE BEING DISPOSED OFF BY THIS C OMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. THE ONLY GRIEVANCE OF THE ASSESSEES IN THESE APP EALS RELATE TO THE SUSTENANCE OF PENALTY LEVIED BY THE ASSESSING OFFIC ER U/S 271 (1) (C) OF THE INCOME TAX ACT, 1961 [IN SHORT' THE ACT']. 4. THE FACTS OF THE CASE IN BRIEF ARE THAT A SEARCH AND SEIZURE OPERATION U/S 132 OF THE ACT WAS CARRIED OUT AT THE RESIDENTIAL P REMISES OF THE ASSESSEE AND THE FAMILY MEMBERS ON 15.12.2009 AND 16.12.2009. DU RING THE COURSE OF SEARCH, CERTAIN INCRIMINATING DOCUMENTS / LOOSE APP EARS / BOOKS OF ACCOUNT AND VARIOUS ASSETS WERE FOUND AND SEIZED. THEREAFTE R, NOTICES U/S 153A OF THE ACT WERE ISSUED AND IN RESPONSE THE ASSESSEES FURNI SHED THE RETURNS OF INCOME INCLUDING THE SURRENDERED INCOME. THE ASSESSING OFF ICER, HOWEVER, MADE VARIOUS ADDITIONS IN THE INCOME DECLARED BY THE ASS ESSEES BUT THE ADDITIONS MADE BY THE ASSESSING OFFICER WERE DIRECTED TO BE D ELETED BY THE ITAT VIDE ORDER DT 26.11.2013. THE ASSESSING OFFICER NOTED TH AT THERE WAS DIFFERENCE IN THE TOTAL INCOME DECLARED BY THE ASSESSEE U/S 139(1 ) OF THE ACT AND INCOME 3 DECLARED U/S 153A OF THE ACT. HE CONSIDERED THE DIF FERENCE AS CONCEALED INCOME OF THE ASSESSEE AND LEVIED PENALTY U/S 271 ( 1) (C) OF THE ACT. 5. BEING AGGRIEVED, THE ASSESSEES CARRIED THE MATTE R TO THE LD. CIT(A) WHO PASSED THE IMPUGNED ORDERS EX-PARTE BY STATING THAT THE NOTICES WERE ISSUED TO THE ASSESSEES BUT NONE ATTENDED ON THE DA TES FIXED FOR HEARING. THE LD. CIT(A) SUSTAINED THE PENALTY LEVIED BY THE ASSE SSING OFFICER. NOW THE ASSESSEES ARE IN APPEALS. 6. THE LD. COUNSEL FOR THE ASSESSEES SUBMITTED THAT THE NOTICES ISSUED BY THE CIT(A) WERE NOT SERVED UPON THE ASSESSEES AND N O OPPORTUNITY FOR HEARING WAS GIVEN, THEREFORE, LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAINING THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S 271(1) (C) OF THE ACT.. 7. IN HIS RIVAL SUBMISSIONS, THE LD. SR. DR SUPPORT ED THE ORDERS OF THE AUTHORITIES BELOW. 8. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE LD. CIT(A) IN PARA 3 OF THE IMPUGNED ORDERS HAS MENTION ED THAT VARIOUS NOTICES WERE ISSUED TO THE ASSESSEES BY POST, IN RESPONSE T O WHICH, THE ASSESSEES EITHER FAILED TO APPEAR OR SOUGHT THE ADJOURNMENTS. IT IS ALSO MENTIONED THAT THE LAST NOTICE WAS ISSUED ON 2.11.2018 FOR HEARING ON 14.11.2018 BUT NONE ATTENDED. IN THE PRESENT CASE IT IS NOT CLEAR AS TO WHETHER THE NOTICES ISSUED 4 BY THE LD. CIT(A) WERE SERVED UPON BY THE ASSESSEES . IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . WE, THEREFORE, BY KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE THESE CAS ES BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE W ITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEES. 9. IN THE RESULT, THE APPEALS OF THE ASSESSEES ARE ALL OWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 01.05.2019) SD/- SD/- (N.K. CHOUDHRY) (N.K. SAINI) JUDICIAL MEMBER VICE PRESIDENT DATED : 01.05.2019 . . / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. / CIT 4. ( )/ THE CIT(A) 5. , , # / DR, ITAT, JODHPUR 6. & / GUARD FILE / BY ORDER / ASSISTANT REGISTRAR 5