Mrs. Poonam Midha, Chandigarh V. DCIT, Chandigarh

ITA 657/CHANDI/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 90104 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-02-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 31-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K SAINI
• Assessee Lawyers: DR AMA RVEER SINGH
• Keywords: Unexplained investment; Document seized; Documents seized
• Section: 142(1); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 422/CHD/2013 (ASSESSMENT YEAR : 2008-09) THE D.C.I.T., VS. SMT.POONAM MIDHA CENTRAL CIRCLE I, # 3049, SECTOR 21-D, CHANDIGARH. CHANDIGARH. PAN: AEZPM1866P APPELLANT BY : DR. AMARVEER SINGH, DR RESPONDENT BY : SHRI N.K. SAINI ITA NO. 653/CHD/2013 (ASSESSMENT YEAR : 2003-04) ITA NO. 654/CHD/2013 (ASSESSMENT YEAR : 2005-06) ITA NO. 655/CHD/2013 (ASSESSMENT YEAR : 2006-07) ITA NO. 656/CHD/2013 (ASSESSMENT YEAR : 2007-08) ITA NO. 657/CHD/2013 (ASSESSMENT YEAR : 2008-09) AND ITA NO. 658/CHD/2013 (ASSESSMENT YEAR : 2009-10) SMT.POONAM MIDHA VS. THE D.C.I.T., # 3049, SECTOR 21-D, CENTRAL CIRCLE I, CHANDIGARH. CHANDIGARH. PAN: AEZPM1866P (APPELLANT) (RESPONDENT) 2 APPELLANT BY : SHRI N.K. SAINI RESPONDENT BY : DR. AMARVEER SINGH, DR DATE OF HEARING : 11.02.2015 DATE OF PRONOUNCEMENT : 12.02.2015 O R D E R PER BHAVNESH SAINI, J.M. : THIS ORDER SHALL DISPOSE OFF THE DEPARTMENTAL APPE AL AS WELL VARIOUS APPEALS FILED BY THE ASSESSEE AGAINST THE COMMON ORDER OF THE LEARNED CIT (APPEALS) (CENTRAL), GURGA ON DATED 8.2.2013 FOR ASSESSMENT YEARS MENTIONED ABOVE I.E. 2003-04, 2005-06, 2006-07, 2007-08, 2008-09 AND 2009-10. 2. IN THESE CASES, VARIOUS GROUNDS HAVE BEEN RAISED IN THE APPEALS OF THE ASSESSEE AND IN THE DEPARTMENTAL APP EAL ONLY ONE GROUND IS RAISED WITH REGARD TO DELETION OF ADD ITION OF RS.56 LACS ON ACCOUNT OF UNEXPLAINED INVESTMENT IN FLAT IN GREEN ESTATE. THE LEARNED COUNSEL FOR ASSESSEE SUB MITTED THAT SINCE ASSESSMENT ORDERS WERE FRAMED ON EX-PART E BASIS UNDER SECTION 153A R.W.S. 144 OF THE ACT AND APPELL ATE ORDER WAS ALSO PASSED ON EX-PARTE BASIS, THEREFORE, THE A SSESSEE MAY BE GIVEN ONE MORE CHANCE TO EXPLAIN ALL THE ISS UES BEFORE THE ASSESSING OFFICER. HE HAS SUBMITTED THAT IN T HE IDENTICAL GROUP CASES OF SHRI PREM LAL MIDHA VS. DCIT, CENTRA L CIRCLE-I, CHANDIGARH IN ITA NOS.660 TO 666/CHD/2013, THE I.T. A.T. CHANDIGARH BENCH ON IDENTICAL FACTS VIDE ORDER DATE D 9.12.2014 RESTORED ALL THE ISSUES TO THE FILE OF TH E ASSESSING OFFICER WITH DIRECTION TO REDECIDE ALL THE ISSUES S UBJECT TO COST 3 OF RS.10,000/- PER APPEAL. THE COPY OF THE ORDER DATED 9.12.2014 IS PLACED ON RECORD. HE HAS, THEREFORE, SUBMITTED THAT THESE MATTERS MAY ALSO BE RESTORED TO THE FILE OF THE ASSESSING OFFICER AS IS DIRECTED EARLIER ABOVE IN T HE GROUP CASES OF SHRI PREM LAL MIDHA (SUPRA). 3. THE LEARNED D.R FOR THE REVENUE RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND FOU ND THAT THE ISSUES RAISED IN THE DEPARTMENTAL APPEAL AS WEL L AS ASSESSEES APPEAL ARE IDENTICAL AS HAVE BEEN CONSID ERED BY THE I.T.A.T. CHANDIGARH BENCH IN THE CASE SHRI PREM LAL MIDHA (SUPRA) IN WHICH THE TRIBUNAL VIDE ORDER DATED 9.12 .2014 RESTORED ALL THE MATTERS TO THE FILE OF THE ASSESSI NG OFFICER WITH DIRECTION TO REDECIDE ALL THE ISSUES SUBJECT T O COST OF RS.10,000/- PER APPEAL. 5. THE ORDER OF THE TRIBUNAL FROM PARA 1 TO 7 IS RE PRODUCED AS UNDER : THESE APPEALS ARE DIRECTED AGAINST THE ORDER OF LD CIT(A), CHANDIGARH DATED 8.2.2013. 2. IN THIS GROUP OF CASES VARIOUS GROUNDS HAVE BEEN RAISED BUT THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT SIN CE ASSESSMENT ORDER WAS FRAMED ON EXPARTE BASIS U/S 153A R.W.S. 1 44 OF IT ACT AND THE APPELLATE ORDERS WERE ALSO PASSED ON EXPART E BASIS. HE SUBMITTED THAT ON LAST DATE OF HEARING 20 DAYS TIME WAS SOUGHT ON BEHALF OF THE ASSESSEE WHICH WAS NOT GRANTED AND TH US THE ASSESSEE HAS BEEN DEPRIVED OF OPPORTUNITY OF HEARIN G, THEREFORE THE MATTER SHOULD BE RESTORED TO THE FILE OF ASSESSING OFFICER FOR RE EXAMINATION. THE LD. COUNSEL FOR THE ASSESSEE ALSO FAIRLY ADMITTED THAT IN IDENTICAL CIRCUMSTANCES THE TRIBUNAL IN CAS E OF U.T. BUILDERS 4 & PROMOTERS LTD V DCIT IN ITAS NO. 667 TO 673/CHD/2 013 WAS PLEASED TO SET ASIDE THE ORDER OF THE LD. CIT(A) TO THE FILE OF ASSESSING OFFICER SUBJECT TO PAYMENT OF COST OF RS, 15,000 PER APPEAL. HOWEVER, SINCE THIS IS A CASE OF INDIVIDUA L DIRECTOR EITHER THE COST SHOULD BE DROPPED OR ONLY NOMINAL COST SHO ULD BE IMPOSED. 3 ON THE OTHER HAND, THE LD. D.R FOR THE REVENUE S UBMITTED THAT VARIOUS OPPORTUNITIES HAVE BEEN GRANTED BY THE ASSE SSING OFFICER AS WELL AS THE LD. CIT(A) BUT THE ASSESSEE HAS MISERAB LY FAILED TO ATTEND THE PROCEEDINGS, THEREFORE THIS ISSUE SHOULD NOT BE TAKEN LIGHTLY BECAUSE REMANDING OF THE MATTER WOULD AMOUN T TO WASTAGE OF PRECIOUS TIME OF AUTHORITIES BELOW. 4 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFULL Y AND FIND THAT SEARCH WAS CONDUCTED IN THE PREMISES OF THE AS SESSEE AND ULTIMATELY CASES WERE TRANSFERRED TO THE CENTRAL CI RCLE. THE ASSESSEE DID NOT FILE ANY RETURN IN RESPONSE TO NOT ICE U/S 153A AND THEREFORE NOTICES U/S 142(1) AND 143(2) WERE ISSUED BY THE ASSESSING OFFICER. HEARING IN ASSESSMENT PROCEEDING S WAS FIXED ON VARIOUS DATES. DETAIL OF WHICH HAS BEEN INCORPORAT ED IN THE ASSESSMENT ORDER WHICH IS AS UNDER: SR NO DESCRIPTION OF NOTICE ISSUED DATE OF ISSUE OF NOTICE DATE FIXED GIST OF PROCEEDINGS 1 NOTICE U/S 142(1) & 143(2) ALONG WITH QUESTIONNAIRE 9.6.2010 28.6.2010 NONE APPEARED ON THAT DATE 2 NOTICE U/S 142(1) & 143(2) ALONG WITH QUESTIONNAIRE 1.9.2010 17.9.2010 NONE APPELLATE- EARED ON THAT DATE 3 NOTICE U/S 142(1) ALONG WITH QUESTIONNAIRE 20.9.2010 20.9.2010 NO APPEARANCE WAS MADE ON THIS DATE ALSO NEITHER ANY REQUEST FOR ADJOURNMENT WAS MADE 4 LETTER NO. 1334 ISSUED FOR REFIXING THE CASE 14.10.2010 20.10.2010 SHRI PRAKSHIT AGGARWAL, C.A APPEARED AND FILED POWER OF ATTORNEY. HOWEVER, NO REPLIES TO THE QUESTIONNAIRES DATED 9.6.2010, 1.9.2010 AND 20.9.2010 WERE FILED ON THIS DATE. CASE ADJOURNED 8.11.2010 5 5 8.11.2010 NONE ATTENDED NOR ANY WRITTEN REPLY FILED BY THE ASSESSEE. 6 LETTER NO. 1434 ISSUED FOR REFIXING THE CASE 8.11.2010 12.11.2010 NONE APPEARED ON THIS DATE ALSO NOR ANY REQUEST FOR ADJOURNMENT WAS MADE 7 12.11.2010 24.11.2010 APPEARANCE WAS MADE BY THE ASSESSEE ALONG WITH HIS COUNSEL SHRI PRIKSHIT AGGARWAL. BUT NO REPLY FILED BY THE ASSESSEE. VIDE ORDER SHEET ENTRY DATED 24.11.2010, THE ASSESSEE UNDERTOOK TO FILE REPLIES TO QUESTIONNAIRES WITHIN 7 DAYS. HOWEVER, NO REPLY WAS FILED. THEREAFTER THE ASSESSMENT WAS COMPLETED ON EXPARTE BASIS U/S 153A R.W.S. 144 OF IT ACT. 5 THE LD. CIT(A) FIXED THE APPEALS VIDE NOTICE DATE D 10.4.2012 FOR 7.5.2012 BUT NONE APPEARED ON BEHALF OF THE ASS ESSEE. ANOTHER NOTICE WAS SENT FIXING THE APPEALS ON 21.5.2012 AND THE ASSESSING OFFICER CONFIRMED THE SERVICES OF THIS NOTICE. IN R ESPONSE AN ADJOURNMENT WAS SOUGHT FOR THE MONTH OF JUNE 2012 W HICH WAS GRANTED AND THE CASES WERE FIXED ON 18.6.2012. ON THAT DATE AGAIN AN ADJOURNMENT WAS SOUGHT AND THE CASES WERE AGAIN FIXED ON 9.7.2012 & 13.8.2012 AND AGAINST ADJOURNMENTS WERE SOUGHT. FINALLY THE CASES WERE FIXED FOR HEARING GIVING THE ASSESSEE A LAST OPPORTUNITY ON 20.9.2012 AND THE ASSESSEE WAS INFOR MED THAT NO FURTHER EXTENSION OF TIME WOULD BE ENTERTAINED. LA TER ON IT WAS INTIMATED THAT THE COUNSEL FOR THE ASSESSEE WAS CHA NGED. AFTER THE CHANGE OF COUNSEL FOR THE ASSESSEE FROM 27.11.2012 AGAIN THE CASES WERE ADJOURNED ON 19.12.2012, 17.1.2013 AND 3 1.1.2013. ON THE LAST DATE OF HEARING AN ADJOURNMENT WAS SOUGHT THROUGH FAX MESSAGE. THE LD. CIT(A) NOTED THAT NO WRITTEN REPL Y OR PAPERS HAVE BEEN FILED, THEREFORE SHE PROCEEDED TO DECIDE THE APPEALS ON EXPARTE BASIS. THE ABOVE CLEARLY SHOW THAT THE ASS ESSEE HAS BEEN 6 TOTALLY UN-COOPERATIVE AND DESPITE VARIOUS OPPORTUN ITIES, HAS NOT BOTHERED TO ATTEND THE PROCEEDINGS. 6 WE FURTHER FIND THAT IN CASE OF UT BUILDERS & PRO MOTERS LTD V DCIT (SUPRA) KEEPING THE PRINCIPAL OF NATURAL JUSTI CE IN VIEW THE ASSESSEE WAS GIVEN ONE LAST OPPORTUNITY AND THE MAT TERS WERE REMANDED TO THE FILE OF ASSESSING OFFICER SUBJECT T O PAYMENT OF COST OF RS. 15,000/- PER APPEAL. IN THIS CASE ALSO THE A SSESSING OFFICER GAVE VARIOUS OPPORTUNITIES SIMILAR TO THE OPPORTUNI TIES GIVEN IN CASE OF UT BUILDERS & PROMOTERS LTD. (SUPRA). FURTHER TH E LD. CIT(A) ALSO GAVE VARIOUS ADJOURNMENTS AS GIVEN IN THE CASE OF UT BUILDERS & PROMOTERS (SUPRA) BUT THE ASSESSEE REMAINED TOTAL LY UNCOOPERATIVE. THEREFORE WE ARE OF THE OPINION THAT CONSIDERING THE DECISION IN CASE OF UT BUILDERS & PROMOTERS (SUPRA) AND THE FACT THAT IN THIS CASE THE ASSESSEE IS AN INDIVIDUAL, WE SET ASIDE THE ORDER OF LD. CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF ASSESSING OFFICER WITH A DIRECTION TO ADJUDICATE TH E ISSUES AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE SUBJECT TO THE CONDITION THAT THE ASSESSEE SHALL PAY A COST OF RS. 10,000/- PER APPEAL I.E. RS. 70,000/0 (RS. SEVENTY THOUSAND ONLY ) FOR ALL THE APPEALS TO THE DEPARTMENT. THE COST SHALL BE PAID WITHIN A PERIOD OF 30 DAYS FROM THE DATE OF THIS ORDER. THE ASSESS EE IS FURTHER DIRECTED TO COOPERATE IN THE ASSESSMENT PROCEEDINGS BEFORE THE ASSESSING OFFICER AND NOT TO SEEK UNNECESSARY ADJOU RNMENTS. THE ASSESSING OFFICER SHOULD COMPLETE THE ASSESSMENTS A FTER CONSIDERING THE EXPLANATIONS /EVIDENCES PRODUCED BE FORE HIM BY THE ASSESSEE IN ACCORDANCE WITH LAW. 7. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09.12.2014. 6. THE DATES OF HEARING AND THE EX-PARTE MATTERS IN THE CASE OF THE PRESENT ASSESSEE AND IN THE CASE OF SHRI PR EM LAL MIDHA (SUPRA) ARE IDENTICAL. IN THE CASE OF SHRI PREM LAL MIDHA (SUPRA) THE TRIBUNAL ALSO REFERRED OTHER GROU P CASES FOR THE PURPOSE OF RESTORING THE MATTER TO THE FILE OF THE ASSESSING 7 OFFICER SUBJECT TO COST. THEREFORE, THE INTEREST OF JUSTICE REQUIRES THAT THIS MATTER MAY ALSO BE RESTORED TO T HE FILE OF THE ASSESSING OFFICER FOR ADJUDICATION AFRESH SUBJE CT TO COST AS ALREADY IMPOSED IN THE CASE SHRI PREM LAL MIDHA (SUPRA). IT MAY ALSO BE NOTED HERE THAT IN THE DEPARTMENTAL APPEAL THE REVENUE CHALLENGED THE DELETION OF ADDITION OF RS.5 6 LACS IMPOSED ON ACCOUNT OF UNEXPLAINED INVESTMENT IN FLA T IN GREEN ESTATE. THE LEARNED CIT (APPEALS) IN PARA 1 7.2 OF THE IMPUGNED ORDER HAS CONSIDERED THE SUBMISSION OF THE ASSESSEE THAT IT WAS A DOUBLE ADDITION MADE IN THE HANDS OF THE ASSESSEE. THE LEARNED CIT (APPEALS) ON PERUSING THE ASSESSMENT ORDER OF SHRI PREM LAL MIDHA (SUPRA) FOU ND THAT THE SAME SEIZED DOCUMENTS ARE THE BASIS OF ADDITION OF RS.56 LACS. THE CONTENTION OF THE ASSESSEE WAS FOUND T O BE CORRECT AND ACCORDINGLY, THE ASSESSING OFFICER WAS DIRECTED TO DELETE THIS ADDITION AS THE SAME TANTAMOUNTS TO DOUBLE ADD ITION AS THE SAME HAS ALREADY BEEN CONSIDERED IN THE HANDS O F SHRI PREM LAL MIDHA (SUPRA). SINCE IN THE CASE OF SHRI PREM LAL MIDHA (SUPRA), THE MATTER IN ISSUE HAS ALREADY BEEN RESTORED TO THE FILE OF THE ASSESSING OFFICER, THEREFORE, TH E LEARNED COUNSEL FOR ASSESSEE HAS STATED THAT THIS MATTER IN THE DEPARTMENTAL APPEAL MAY ALSO BE RESTORED TO THE FIL E OF THE ASSESSING OFFICER FOR RECONSIDERATION ALONGWITH SIM ILAR ISSUE INVOLVED IN THE CASE OF SHRI PREM LAL MIDHA (SUPRA) . 7. CONSIDERING THE ORDER IN THE CASE OF SHRI PREM LAL MIDHA (SUPRA) AND THE EXPLANATION GIVEN BY THE LEARNED CO UNSEL FOR ASSESSEE ABOVE, WE ARE OF THE VIEW THAT ALL THE MAT TERS REQUIRE RECONSIDERATION IN THE LIGHT OF EARLIER ORDER ALREA DY PASSED ON 8 IDENTICAL FACTS IN THE CASE OF SHRI PREM LAL MIDHA (SUPRA) SUBJECT TO COST. WE ACCORDINGLY, SET ASIDE THE ORD ERS OF THE AUTHORITIES BELOW AND REMAND THE ENTIRE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER WITH DIRECTION TO ADJ UDICATE ALL THE ISSUES AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE SUBJECT TO CONDITION THAT THE ASSESSEE SHALL PAY CO ST OF RS.10,000/- PER APPEAL I.E. RS.60,000/- (RUPEES SIX TY THOUSANDS ONLY) FOR ALL THE APPEALS TO THE DEPARTME NT. THE COST SHALL BE PAID WITHIN A PERIOD OF 30 DAYS FROM THE DATE OF THIS ORDER. THE ASSESSEE IS FURTHER DIRECTED TO CO OPERATE WITH THE ASSESSING OFFICER FOR FINALIZATION OF THE ASSES SMENTS AND SHALL NOT SEEK UNNECESSARY ADJOURNMENT. THE ASSESS ING OFFICER SHALL COMPLETE ASSESSMENTS AFTER CONSIDERIN G THE EXPLANATION/EVIDENCES PRODUCED BEFORE HIM BY THE AS SESSEE IN ACCORDANCE WITH LAW. 8. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSE SSEE AND DEPARTMENTAL APPEAL ARE ALLOWED FOR STATISTICAL PUR POSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 TH DAY OF FEBRUARY, 2015. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 12 TH FEBRURAY, 2015 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH