Ashok Kumar, Haryana V. ITO, Ward-1, Fatehabad

ITA 5995/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9347 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 18-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Opportunity of being heard; Principle of natural justice; Tangible material; TDS
• Section: 147; 148; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 5994/DEL/2018 ASSESSMENT YEAR: 2014-15 ARJUN DASS, VS. ITO, WARD-1, FATEHABAD FATEHABAD C/O SH. ANAND FETROZ, HARYANA BHUNA ROAD, FATEHABAD (PAN: AIPPD4242E) (ASSESSEE) (RESPONDENT) I.T.A. NO. 5995/DEL/2018 ASSESSMENT YEAR: 2014-15 ASHOK KUMAR, VS. ITO, WARD-1, FATEHABAD FATEHABAD C/O SH. J.P. GOYAL, CA HARYANA SHIVALAYA MARKET, G.T. ROAD, HARYANA-125050 (PAN: APQPK6623L) (ASSESSEE) (RESPONDENT) I.T.A. NO. 5996/DEL/2018 ASSESSMENT YEAR: 2014-15 PARVEEN KUMAR ANAND (HUF) VS. ITO, WARD-2, FATEHABAD FATEHABAD C/O SH. J.P. GOYAL, CA HARYANA SHIVALAYA MARKET, G.T. ROAD, HARYANA-125050 (PAN: AAJHP8948M) (ASSESSEE) (RESPONDENT) I.T.A. NO. 5997/DEL/2018 ASSESSMENT YEAR: 2014-15 JAGDISH KUMAR, VS. ITO, WARD-1, FATEHABAD FATEHABAD C/O SH. J.P. GOYAL, CA HARYANA SHIVALAYA MARKET, G.T. ROAD, HARYANA-125050 (PAN: BPUPK6333N) (ASSESSEE) (RESPONDENT) 2 I.T.A. NO. 5998/DEL/2018 ASSESSMENT YEAR: 2014-15 OM PRAKASH, VS. ITO, WARD-1, FATEHABAD FATEHABAD C/O SH. J.P. GOYAL, CA HARYANA SHIVALAYA MARKET, G.T. ROAD, HARYANA-125050 (PAN: ANMPP5990M) (ASSESSEE) (RESPONDENT) I.T.A. NO. 5999/DEL/2018 ASSESSMENT YEAR: 2014-15 BHIM SAIN, VS. ITO, WARD-1, FATEHABAD FATEHABAD C/O SH. J.P. GOYAL, CA HARYANA SHIVALAYA MARKET, G.T. ROAD, HARYANA-125050 (PAN: FIXPSS770P) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. LALIT MOHAN, CA REVENUE BY : SH. SL ANURAGI, SR. DR. ORDER THESE 06 APPEALS ARE FILED BY THE SEPARATE ASSESSEE S AGAINST THE RESPECTIVE ORDERS PASSED BY THE LD. CIT(A)-2, GURGA ON RELATING TO ASSESSMENT YEAR 2014-15 ON THE FOLLOWING GROUNDS. S INCE THE COMMON ISSUES INVOLVED IN THESE APPEALS, EXCEPT THE DIFFER ENCE IN FIGURES, HENCE, THE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPO SED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE, BY DEALIN G WITH THE FACTS OF ITA NO. 5994/DEL/2018 (AY 2014-15) ARJUN DASS VS. ITO, WARD-1 AND THE DECISION THEREOF WILL APPLY MUTATIS MUTANDIS TO OTHER 05 APPEALS OF THE SEPARATE ASSESSEE, AS AFORESAID, BECAUSE THE LD . CIT(A) HAS PASSED THE EXPARTE ORDER ON ALL THE APPEALS. FOR THE SAKE OF CONVENIENCE, THE GROUNDS OF ITA NO. 5994/DEL/2018 (AY 2014-15) ARE R EPRODUCED HEREUNDER:- 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEA LS) HAS GROSSLY ERRED BOTH IN LAW AND ON FACTS IN UPHOLDING THE INITIATION OF PROCEEDINGS UNDER SECTION 147 OF THE ACT AND, CO MPLETION OF ASSESSMENT UNDER SECTION 147/143(3) OF THE ACT WITH OUT APPRECIATING THAT THE SAME WERE WITHOUT JURISDICTIO N AND HENCE DESERVED TO BE QUASHED AS SUCH. 3 1.1 THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) HAS FAILED TO APPRECIATE THAT THERE WAS NO SPECIFIC REL EVANT, RELIABLE AND TANGIBLE MATERIAL ON RECORD TO FORM A REASON T O BELIEVE' THAT INCOME OF THE APPELLANT HAD ESCAPED ASSESSMENT AND IN VIEW THEREOF THE PROCEEDINGS INITIATED ARE ILLEGAL, UNTENABLE AND THEREFORE UNSUSTAINABLE. 1.2 THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) HAS FAILED TO APPRECIATE THAT REASONS RECORDED MECHANIC ALLY WITHOUT APPLICATION OF MIND DO NOT CONSTITUTE VALID REASONS TO BELIEVE FOR ASSUMPTION OF JURISDICTION U/S 147 OF THE ACT. 1.3 THAT IN ABSENCE OF ANY VALID APPROVAL OBTAINED UNDER SECTION 151 OF THE ACT, INITIATION OF PROCEEDINGS U/S 147 O F THE ACT AND ASSESSMENT FRAMED U/S 147/143(3) OF THE ACT ARE INV ALID AND DESERVE TO BE QUASHED AS SUCH. 2. THAT THE COMMISSIONER OF INCOME TAX (APPEALS) H AS ALSO ERRED BOTH IN LAW AND ON FACT IN SUSTAINING AN ADDI TION OF RS. 4,36,907/- (50% OF RS. 8,73,814) REPRESENTING INTER EST ON ENHANCED COMPENSATION ON COMPULSORY ACQUISITION OF AGRICULTURAL LAND RECEIVED U/S 28 OF LAND COMPENSATION ACT 1894 AND ELIGIBLE FOR EXEMPTION U/S 10(37) OF THE ACT. 2.1 THAT WHILE SUSTAINING THE AFORESAID ADDITION TH E LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRONEOUSL Y RELIED ON THE JUDGMENT OF HONBLE PUNJAB AND HARYANA HIGH COU RT IN THE CASE OF MANJIT SINGH V. UOL CWP NO. 15506/2013 DATE D 14.1.2014 REPORTED IN 237 TAXMAN 116 OVERLOOKING TH E FOLLOWING BINDING JUDGMENTS OF APEX COURT: I) 315 ITR 1(SC) CIT VS. GHANSHYAM (HUF) (DATED 16. 7.2009) II) 367 ITR 498(SC) CIT VS. GOVINDBHAI MAMAIYA (DAT ED 4.9.2014) III) C.A. NO, 13053/2017 CIT VS. CHET RAM (HUF) (DA TED 12.9.2017) IV) C.A. NO. 15041/2017 UOI VS. HARI SINGH AND ORS. (DATED 15.9.2017) 2.2 THAT WHILE SUSTAINING THE AFORESAID ADDITION TH E LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN N OT CONSIDERING THE FACT THAT AFORESAID COMPENSATION IS WITHOUT DEDUCTION OF TDS WHICH IS A PART OF COMPENSATION IN VIEW OF JUDGMENT OF APEX COURT IN THE CASE OF CIT VS. GHANS HYAM (HUF) REPORTED IN 315 ITR 1. 2.3 THAT VARIOUS ADVERSE FINDINGS AND CONCLUSIONS RECORDED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ARE 4 FACTUALLY INCORRECT AND CONTRARY TO RECORD, LEGALLY MISCONCEIVED AND UNTENABLE.. 3 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) HAS FURTHER ERRED BOTH IN LAW AND ON FACT IN INVOKI NG SECTION 56(2)(VII) READ WITH SECTION 57(IV) OF THE ACT TO S USTAIN THE IMPUGNED ADDITION. IT IS THEREFORE, PRAYED THAT IT BE HELD THAT ASSESS MENT MADE BY THE LEARNED ASSESSING OFFICER AND SUSTAINED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) DESERV ES TO BE QUASHED AS SUCH. IT BE FURTHER HELD ADDITION MAD E AND UPHELD BY THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) BE DELETED AND APPEAL OF THE APPELLANT BE ALLOWED. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEATED HERE FOR THE SAKE OF BREVITY. 3. DURING THE HEARING, LD. COUNSEL FOR THE ASSESSEE HAS STATED THAT LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN PASSING TH E EX-PARTE ORDER AND THAT TOO WITHOUT PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD AND WITHOUT OBSERVING THE PRINCIPLE OF NATURAL JUSTICE AND NOT PASSED A SPEAKING ORDER. HE FURTHER SUBMITTED THAT THE ISSU ES IN DISPUTE ARE SQUARELY COVERED BY THE DECISION OF THE ITAT, F BENCH, NEW DELHI IN ITA NO. 1823/DEL/2016 (AY 2011-12) VIDE ORDER DATED 31. 1.2019 IN THE CASE OF SMT. SUSHMA GUPTA C/O VIJAY KUMAR VS. ITO, WARD 1(3), FARIDABAD. HE FILED A PAPER BOOK CONTAINING PAGES 1-20 IN WHIC H HE HAS ATTACHED THE COPY OF ACKNOWLEDGEMENT OF RETURN OF INCOME ALONGWI TH COMPUTATION OF INCOME AND STATEMENT OF INCOME FOR FINANCIAL YEAR 2 013-14 RELEVANT TO ASSESSMENT YEAR 2014-15; COPY OF NOTICE U/S. 148 OF THE ACT; COPY OF 5 REPLY FILED BY ASSESSEE BEFORE AO IN RESPONSE TO NO TICE U/S. 148 OF THE ACT; COPY OF REPLY FILED BY THE ASSESSEE FROM AO AL ONGWITH REASONS RECORDED U/S. 147 OF THE ACT; COPY OF LETTER TO SH. RAMAN KUMAR S/O L/H SH. ARJUN DASS FROM ASSESSING OFFICER; COPY OF NOTI CE U/S. 142(1)/143(2) OF THE ACT; COPY OF REPLY FILED BY ASSESSEE BEFORE AO ALONGWITH ENCLOSURE AND COPY OF SUBMISSION FILED BY ASSESSEE BEFORE LD. CIT(A AND STATED THAT THESE DOCUMENTS WERE ON RECORD BEFORE THE AO AND LD . CIT(A), BUT THE SAME WAS NOT PROPERLY CONSIDERED BY THE LD. CIT(A). THEREFORE, HE REQUESTED THAT THE ISSUES IN DISPUTE MAY BE REMIT TED BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH, AS PER LA W AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE , AFTER PROPERLY CONSIDERING THE DOCUMENTS/EVIDENCES FILED BY THE AS SESSEE. 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER OF THE LD. CIT(A) AND STATED THAT LD. CIT(A) HAS GIVEN VARIOUS OPPORT UNITIES TO THE ASSESSEE, BUT THE ASSESSEE REMAINED NON-COOPERATIVE AND AS A RESULT THEREOF, THE LD. CIT(A) HAS NO OPTION BUT TO DISMIS S THE APPEAL OF THE ASSESSEE. BUT HE HAS NO OBJECTION FOR SETTING AS IDE THE ISSUES IN DISPUTE TO THE FILE OF THE LD. CIT(A) FOR DECIDING THE SA ME AFRESH. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS AS WELL AS THE RELEVANT PROVISIONS OF LAW, I AM OF THE VIEW TH AT THERE IS NO DOUBT THAT ASSESSEE REMAINED NON-COOPERATIVE BEFORE THE LD. CI T(A) AND THE LD. CIT(A) HAS PASSED THE EXPARTE ORDER, WITHOUT PROPE RLY CONSIDERING THE DOCUMENTS / EVIDENCES FILED BY THE ASSESSEE, WHICH IN MY OPINION, IS NOT IN ACCORDANCE WITH THE PRINCIPLES OF NATURAL JU STICE AND IT IS AN 6 ERRONEOUS APPROACH. I FURTHER FIND CONSIDERABLE CO GENCY IN THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT ITAT, F BENCH, NEW DELHI IN ITA NO. 1823/DEL/2016 (AY 2011-12) VIDE ORDER DATED 31.1.2019 IN THE CASE OF SMT. SUSHMA GUPTA C/O VIJAY KUMAR VS. ITO, WARD 1(3), FARIDABAD HAS DECIDED THE SIMILAR AND IDENTICAL ISS UE IN FAVOUR OF THE ASSESSEE, WHICH IN MY OPINION, NEEDS TO BE CONSIDER ED BY THE LD. CIT(A), ALONGWITH THE DOCUMENTS / EVIDENCES FILED BY THE AS SESSEE. IN THIS REGARD, I DRAW SUPPORT FROM HONBLE APEX COURT I N THE CASE M/S SAHARA INDIA (FARMS) VS. CIT & ANR. IN [2008] 300 ITR 40 3 WHEREIN IT HAS BEEN HELD THAT EVEN AN ADMINISTRATIVE ORDER HAS TO BE C ONSISTENT WITH THE RULES OF NATURAL JUSTICE. 5.1 IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS AND IN THE INTEREST OF JUSTICE AS WELL AS AGREED BY BOTH THE PARTIES, I REMIT BACK THE ISSUES IN DISPUTE TO THE FILES OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) FOR FRESH ADJUDICATION, AFTER PROPERLY CONSIDERIN G THE DOCUMENTS / EVIDENCES FILED BY THE ASSESSEE AND KEEPING IN MIND THE DECISION OF THE ITAT F BENCH, NEW DELHI IN ITA NO. 1823/DEL/201 6 (AY 2011-12) ORDER DATED 31.1.2019 IN THE CASE OF SMT. SUSHMA GUPTA C/O VIJAY KUMAR VS. ITO, WARD 1(3), FARIDABAD WHEREIN SIMILAR AND IDENT ICAL ISSUE HAS BEEN DECIDED BY THE TRIBUNAL IN ASSESSEES FAVOUR. THE ASSESSEE IS ALSO DIRECTED TO FILE ALL THE DOCUMENTS / EVIDENCES BE FORE THE LD. CIT(A) TO SUBSTANTIATE HIS CASE AND FILE ALL THE NECESSARY DO CUMENTS BEFORE HIM AND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT IN THE CAS E. 7 6. IN THE RESULT, ALL THE 06 APPEALS FILED BY THE A SSESSEE STAND ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 04/04/2019. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 04/04/2019 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES