M/s. Mr. Faisal Hameed C/o.M/s. Bhat Durani Associats, Srinagar V. The Income-tax Officer, Srinagar

ITA 614/ASR/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68149 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 05-09-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 15-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: UPENDER BHATT
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P. JAIN, ACCOUNTANT MEMBER I.T.A. NO. 614 (ASR)/2011 ASSESSMENT YEAR: 2005-06 PAN: AACPH6184N M/S MR. FAISAL HAMEED, VS. INCOME TAX OFFICER, C/O- M/S BHAT DURANI ASSOCIATES WARD 3(1), SRINAG AR, CHARTERED ACCOUNTANTS, J&K FLAT NO. 207, 1 ST FLOOR, YATRI BHAWAN-II, DURGA NAG, DALGATE, SRINAGAR, J&K (APPELLANT) (RESPONDENT) APPELLANT BY: SH. UPENDER BHATT, CA RESPONDENT BY: SH. TARSEM LAL, DR DATE OF HEARING: 05.09.2013 DATE OF PRONOUNCEMENT: 09.09.2013 ORDER PER BENCH 1) THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER DATED 14.05.2009 CORRECTED AS 20.11.2009 PASS ED BY LEARNED CIT(A), JAMMU, FOR THE ASSESSMENT YEAR 2005-06. 2) AS PER THE IMPUGNED ORDER, FORM NO. 35, GROUNDS OF APPEAL AND FORM OF VERIFICATION APPENDED THERETO REVEALS T HAT THESE HAVE NOT BEEN SIGNED BY THE ASSESSEE. 2 I.T.A. NO. 614 (ASR)/2011 ASSESSMENT YEAR: 2005-06 3) LEARNED FIRST APPELLATE AUTHORITY HELD IN HIS OR DER THAT THE POWER OF ATTORNEY DOES NOT EMPOWER THE COUNSEL FOR THE APPELLANT TO SIGN THE APPEAL ON BEHALF OF THE INDIVIDUAL AND THE APPE AL NOT VERIFIED IN THE MANNER PRESCRIBED BY LAW IS NO APPEAL AND CANNOT BE ADMITTED AND HAS TO BE REJECTED IN LIMINE. FINALLY, HE HELD THAT THE AP PEAL FILED IS NOT A VALID ONE AND CANNOT BE TAKEN UP FOR ADJUDICATION. ACCORD INGLY, HE TREATED THE APPEAL INVALID AND DISMISSED THE SAME IN LIMINE VID E IMPUGNED ORDER DATED 20.11.2009 4) AGGRIEVED BY THE IMPUGNED ORDER, THE ASSESSEE FI LED THE PRESENT APPEAL ON 20.12.2011 WHICH WAS TIME BARRED BY 890 D AYS AND THIS BENCH VIDE ORDER DATED 09.07.2012, DISMISSED THE APPEAL F ILED BY THE ASSESSEE BEING TIME BARRED. THEREAFTER, THE ASSESSEE FILED A N APPEAL BEFORE THE HON'BLE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR I.E. I.T.A. NO. 02/2012, IA NO. 359/2012, IN WHICH HON'BLE HIGH COU RT ON 13.09.2012, CONDONED THE DELAY OF 890 DAYS IN FILING THE APPEAL BEFORE THIS BENCH AND RESTORED THE APPEAL ON BOARD OF THE TRIBUNAL AT ITS ORIGINAL NUMBER AND DIRECTED TO DECIDE THE SAME ON MERITS IN ACCORDANCE WITH LAW. AFTER RECEIVING THE SAID ORDER OF THE HON'BLE HIGH COURT, THIS BENCH FIXED THE APPEAL FOR HEARING AND REGISTRY ISSUED NOTICE TO TH E PARTIES AND THE PRESENT APPEAL CAME UP FOR HEARING BEFORE THE BENCH ON 05.09.2013. 3 I.T.A. NO. 614 (ASR)/2011 ASSESSMENT YEAR: 2005-06 5) IN COMPLIANCE OF THE ORDER DATED 13.09.2012 PASS ED BY THE HON'BLE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR , WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELEVANT RECORDS A VAILABLE WITH US. 6) AT THE TIME OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE STATED THAT EXACTLY SIMILAR ISSUE CAME UP FOR HEARING BEFO RE THIS BENCH IN I.T.A. NO. 409(ASR)/2009 FOR A.Y. 2005-06, SH. RAJINDER KA UL VS. ITO, WARD 4, SRINAGAR, KASHMIR AND THIS BENCH VIDE ORDER DATE D 10 TH JUNE, 2011, SET- ASIDE THE ORDER OF LEARNED CIT(A) IN TOTO AND REMAN DED THE MATTER TO THE FILE OF LEARNED CIT(A) WITH A DIRECTION TO GIVE AN OPPORTUNITY TO THE ASSESSEE TO REMOVE THE DEFECT, IF ANY, IN MEMORANDU M OF APPEAL AND THEREAFTER DECIDE THE APPEAL ON MERITS IN ACCORDANC E WITH LAW AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. HE FURTHER SUBMITTED THAT THIS BENCH HAS FOLLOWED T HE ORDER OF HON'BLE PUNJAB AND HARYANA HIGH COURT PASSED IN THE CASE OF COMMISSIONER OF INCOME TAX VS. O.C.M. (INDIA) LTD., REPORTED IN (20 07) 291 ITR 96 (P&H). HE FURTHER STATED THAT HON'BLE DELHI HIGH CO URT IN THE CASE OF REMFRY & SONS VS. COMMISSIONER OF INCOME TAX, REPOR TED IN (2005) 276 ITR 1 (DEL); AND HON'BLE ALLAHABAD HIGH COURT I N THE CASE OF PRAYAG UDYOG (P) LTD. VS. INCOME TAX APPELLATE TRIBUNAL & ANR., REPORTED IN (2000) 245 ITR 288 (ALL), HAVE ALSO ADJUDICATED THE EXACTLY SIMILAR ISSUE 4 I.T.A. NO. 614 (ASR)/2011 ASSESSMENT YEAR: 2005-06 INVOLVED IN THE PRESENT APPEAL AND DIRECTED THE TRI BUNAL TO DECIDE THE ISSUE IN DISPUTE AFRESH, IN ACCORDANCE WITH LAW. 7) ON THE CONTRARY, LEARNED DR RELIED UPON THE ORDE R PASSED BY LEARNED CIT(A), JAMMU. 8) WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE IMPUGNED ORDER PA SSED BY LEARNED FIRST APPELLATE AUTHORITY. WE ARE OF THE CONSIDERED VIEW THAT IT IS AN ADMITTED FACT THAT THE APPEAL FILED BY THE ASSESSEE BEFORE T HE LEARNED FIRST APPELLATE AUTHORITY IS DEFECTIVE. IT IS ALSO A MATT ER OF RECORD THAT NO DEFECT MEMO HAS BEEN ISSUED BY THE OFFICE OF CIT(A) TO THE ASSESSEE DISCLOSING THE DEFECT POINTED OUT BY THE LEARNED CI T(A) IN THE IMPUGNED ORDER. IT IS VERY MUCH UNDERSTANDABLE THAT WITHOUT BRINGING THE DEFECT INTO THE NOTICE OF THE ASSESSEE HOW THE ASSESSEE WO ULD BE ABLE TO RECTIFY THE DEFECT AS POINTED OUT BY THE LEARNED CIT(A) IN THE IMPUGNED ORDER. LEARNED FIRST APPELLATE AUTHORITY DISMISSED THE APP EAL FILED BY THE ASSESSEE IN LIMINE, BEING DEFECTIVE ON 20.11.2009 W HICH THE ASSESSEE HAD FILED ON 21.01.2008. THUS, AS PER THE RECORD MORE T HAN ONE YEAR AND TEN MONTHS HAVE PASSED BUT NO DEFECT MEMO HAS BEEN ISSU ED TO THE ASSESSEE SO FAR BY OFFICE OF CIT(A) AND THE CIT(A) HAS CHOSE N TO DISMISS THE APPEAL OF THE ASSESSEE AS INVALID, WHICH IS NOT PER MISSIBLE UNDER THE LAW 5 I.T.A. NO. 614 (ASR)/2011 ASSESSMENT YEAR: 2005-06 AND THE IMPUGNED ORDER IS CONTRARY TO THE PRINCIPLE S OF NATURAL JUSTICE. THIS BENCH HAS ALSO ADJUDICATED THE EXACTLY SIMILAR ISSUE IN I.T.A. NO. 409(ASR)/2009 FOR A.Y. 2005-06 (SUPRA) ON 10 TH JUNE, 2011, AND SET-ASIDE THE ORDER OF CIT(A) IN TOTO AND REMANDED THE MATTER TO THE FILE OF CIT(A) WITH A DIRECTION TO DECIDE THE ISSUE IN DISPUTE AFR ESH UNDER THE LAW AFTER GIVING AN OPPORTUNITY TO THE ASSESSEE TO REMOVE THE DEFECT AS POINTED OUT BY THE CIT(A) IN THE IMPUGNED ORDER. HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. O.C.M. (INDIA) LTD. (SUPRA), HON'BLE DELHI HIGH COURT IN THE CASE OF REMFRY & SONS VS. COMMISSIONER OF INCOME TAX (SUPRA) AND HON'BLE ALL AHABAD HIGH COURT IN THE CASE OF PRAYAG UDYOG (P) LTD. VS. INCOME TAX APPELLATE TRIBUNAL & ANR. (SUPRA) HAVE ALSO ADJUDICATED THE SIMILAR IS SUE INVOLVED AND SET- ASIDE THE MATTER WITH A DIRECTION TO DECIDE THE ISS UE IN DISPUTE AFRESH UNDER THE LAW. IN THE AFORESAID CASES, HON'BLE HIGH COURTS MAINLY HELD THAT IT WOULD BE INTEREST OF JUSTICE, FAIRNESS AND EQUITY TO PROVIDE AN OPPORTUNITY TO THE ASSESSEE TO RECTIFY THE IRREGULA RITY COMMITTED IN REGARD TO COMPLIANCE OF PROCEDURAL LAW. HON'BLE HIGH COURT S HAVE ALSO HELD THAT IT WOULD MORE APPROPRIATE FOR THE AUTHORITIES CONCE RNED TO GRANT AN OPPORTUNITY TO THE ASSESSEE TO REMOVE THE DEFECT AS THE SAID IRREGULARITY WAS CURABLE AND COULD BE RECTIFIED ON THE DATE OF F ILING OF THE APPEAL OR 6 I.T.A. NO. 614 (ASR)/2011 ASSESSMENT YEAR: 2005-06 EVEN SUBSEQUENT THERETO AND THEY RESTORED THE MATTE R TO THE CIT(A) FOR DECIDING THE APPEAL AFRESH, IN ACCORDANCE WITH LAW. 9) AFTER PERUSING THE RECORD AVAILABLE WITH US ALON G WITH THE JUDGMENTS RENDERED BY THE HON'BLE HIGH COURTS (SUPR A), WE ARE OF THE CONSIDERED VIEW THAT THE IMPUGNED ORDER PASSED BY T HE LEARNED FIRST APPELLATE AUTHORITY IS AGAINST THE PRINCIPLES OF NA TURAL JUSTICE AND DESERVES TO BE CANCELLED. ACCORDINGLY, WE CANCEL TH E IMPUGNED ORDER DATED 20.11.2009 WITH THE DIRECTION TO THE CIT(A) T O GIVE AN OPPORTUNITY TO THE ASSESSEE TO REMOVE THE DEFECT AS POINTED OUT IN THE IMPUGNED ORDER, IF ANY, AND DECIDE THE APPEAL ON MERITS IN ACCORDAN CE WITH LAW AFTER AFFORDING FULL OPPORTUNITY TO THE ASSESSEE. 10) IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH SEPTEMBER, 2013 SD/./- SD/./- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 9 TH SEPTEMBER, 2013 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: M/S MR. FAISAL HAMEED, C/O- M/S BHAT DURANI ASSOCIATES, CHARTERED ACCOUNTANTS, FLAT NO. 207, 1 ST FLOOR, YATRI BHAWAN-II, DURGA NAG, DALGATE, SRINAGAR, J&K 2. ITO, WARD 3(1), SRINAGAR, J&K 7 I.T.A. NO. 614 (ASR)/2011 ASSESSMENT YEAR: 2005-06 3. THE CIT(A), JAMMU 4. THE CIT, JAMMU 5. THE SR DR, I.T.A.T., ASR TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.