Sh. Navtej Singh Bains, Chandigarh V. ACIT, Chandigarh

ITA 665/CHANDI/2009

• Counselvise Citation: 66521514 RSA 2009
• Duration Of Justice: 6 year(s) 6 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 21-12-2015
• Assessment Year: 1998-1999
• Appeal Filed On: 09-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D S SANDHU
• Keywords: Opportunity of being heard; Principle of natural justice; Right to appeal
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, CHANDIGARH BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT & MS. RANO JAIN, ACCOUNTANT MEMBER ITA NOS. 664 & 665/CHD/2009 ASSESSMENT YEARS: 1997-98 & 1998-99 SH. NAVTEJ SINGH BAINS, VS. THE ACIT, CIRCLE 3(1) , CHANDIGARH CHANDIGARH PAN NO. AINPB5713G (APPELLANT) (RESPONDENT) APPELLANT BY : SH. TEJ MOHAN SINGH RESPONDENT BY : SH. D.S. SANDHU DATE OF HEARING : 21.12.2015 DATE OF PRONOUNCEMENT : 22.12.2015 ORDER PER H.L.KARWA, VP THESE TWO APPEALS FILED BY THE ASSESSEE INVOLVING C OMMON ISSUES WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS C OMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE COMMON GROUNDS OF APPEALS ARE AS UNDER:- 1. THAT THE LD. CIT(A) HAS ERRED IN LAW IN UPHOLDIN G THE RE-OPENING OF THE ALREADY COMPLETED ASSESSMENT BY R ESORTING TO THE PROVISIONS OF SECTION 148 WHICH IS ARBITRARY AND UNJUSTIFIED. 2. THAT THE LD. CIT(A) HAS FURTHER ERRED IN UPHOLDI NG THE ADDITION ON PROTECTIVE BASIS MADE ON ACCOUNT OF ALL EGED INTEREST INCOME WHICH IS ARBITRARY AND UNJUSTIFIED. 2 3. THAT THE LD. CIT(A) HAS ERRED IN HOLDING THE REC EIPT TO BE INTEREST INCOME WHICH IN FACT IS PAYMENT MADE TO WARDS APPRECIATION OF AGRICULTURAL LAND WHICH IS NON-TAXA BLE BEING EXEMPT AND AS SUCH CARRIES NO ELEMENT OF INTEREST. 3. IN THIS CASE THE ASSESSING OFFICER FRAMED THE AS SESSMENT ORDERS FOR THE ASSESSMENT YEARS 1997-98 AND 1998-99 U/S 143(3) / 1 47 OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). THE ASSESSING OFFICER M ADE CERTAIN ADDITIONS / DISALLOWANCES IN BOTH THE YEARS UNDER CONSIDERATION . 4. ON APPEAL, THE CIT(A) DECIDED THE APPEALS OF TH E ASSESSEE EX. PARTE VIDE SEPARATE ORDERS DATED 20.3.2009 STATING THAT ADEQUA TE OPPORTUNITY WAS OFFERED TO THE ASSESSEE. THE RELEVANT OBSERVATIONS OF THE CIT( A) IN BOTH THE APPEALS ARE SIMILAR, WHICH ARE AS UNDER:- 10. IN APPEAL, THE ASSESSEE WAS GIVEN A NUMBER OF OPPORTUNITIES ON 31.8.2005, 15.9.2005, 19.10.2005, 25.01.2006, 6.2.2006. THE ASSESSEE HAS FILED WRITTE N SUBMISSIONS VIDE 18.11.2005. HOWEVER, VIDE LETTER DATED 26.6.2006, IT WAS REQUESTED TO KEEP THE APPEAL IN A BEYANCE AS THE MATTER OF SHRI H.S. BAINS WHERE SUBSTANTIVE ADD ITION HAS BEEN MADE IS PENDING BEFORE THE HON'BLE ITAT. THE A SSESSEE WAS GIVEN FRESH OPPORTUNITIES ON 30.10.2007, 13.11. 2007, 12.12.2007, 4.7.2008, 19.8.2008. AGAIN VIDE LETTER DATED 29.8.2008, IT WAS REQUESTED BY THE ASSESSEE TO KEE P THE APPEAL IN ABEYANCE. THE CASE WAS AGAIN FIXED FOR HE ARING ON 30.10.2008. ON THE SAID ATE, SHRI TEJ MOHAN SINGH ATTENDED AND REQUESTED FOR ADJOURNMENT AS HE HAS BEEN ENGAGE D ONLY NOW. THE CASE WAS ADJOURNED TO 20.11.2008. THE LD. CIT(A) WAS ASKED NOT TO TAKE FURTHER ADJOURNMENT AS SUFFIC IENT OPPORTUNITY HAS ALREADY BEEN AFFORDED. HOWEVER, NON E ATTENDED ON 20.11.2008. CASE WAS ADJOURNED TO 24.12 .2008. THE ASSESSEE AGAIN REQUESTED FOR ADJOURNMENT AND T HE CASE WAS ADJOURNED TO 8.1.2009. AGAIN, NONE ATTENDED ON 8.1.2009 3 AND THE CASE WAS ADJOURNED TO 9.3.2009. NONE ATTEN DED ON 9.3.2009. HOWEVER, TELEPHONICALLY IT WAS REQUESTED TO ADJOURN THE CASE. THE LD. COUNSEL WAS ASKED TO APPE AR LATEST BY 17.3.2009. DURING THIS PERIOD, NONE ATTENDED. 11. THE APPEAL IS DISPOSED OF TAKING INTO ACCOUNT T HE WRITTEN SUBMISSIONS GIVEN BY THE ASSESSEE ON 18.1 1.2005. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS. SHRI TEJ MO HAN SINGH, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) HAS NOT CONSIDERED THE WRITTEN SUBMISSIONS OF THE ASSESSEE DATED 10.3.2006 FILED B EFORE HIM. COPIES OF THE WRITTEN SUBMISSIONS ARE AVAILABLE AT PAGES 10 TO 12 OF THE ASSESSEES PAPER BOOK. HE FURTHER POINTED OUT THAT THE LD. CIT(A) HAS NOT AFFORDED AN ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDI NG TO HIM THE CIT(A) HAS TAKEN INTO ACCOUNT THE WRITTEN SUBMISSIONS OF THE A SSESSEE DATED. 18.11.2005. HOWEVER, THE LD. CIT(A) HAS NOT TAKEN INTO CONSIDER ATION THE WRITTEN SUBMISSIONS DATED 10.3.2006. IT IS A VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. IT IS ALSO STATED THAT HE HAS OBSERVED IN PARA 10 O F THE IMPUGNED ORDER THAT HE HAS ASKED THE ASSESSEE TO APPEAR LATEST BY 17.3.20 09. HOWEVER, THERE IS NO EVIDENCE ON RECORD TO SHOW THAT THE COUNSEL OF THE ASSESSEE OR THE ASSESSEE WAS ASKED TO APPEAR BEFORE THE CIT(A) ON A SPECIFIC DAT E. THUS, WE ARE OF THE CONSIDERED VIEW THAT THE LD. CIT(A) HAS NOT AFFORDE D AN ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE PASSING THE IMPU GNED ORDERS. IN THE CASE OF RADHIKA CHARAN BANERJEE V SAMBALPUR MUNICIPALITY, A IR 1979 ORI 69, WHEREIN THE HON'BLE ORISSA HIGH COURT HELD THAT A RIGHT OF APPEAL WHEREVER CONFERRED INCLUDES A RIGHT OF BEING AFFORD ED AN OPPORTUNITY OF BEING HEARD, IRRESPECTIVE OF THE LANGUAGE CONFER RING SUCH RIGHT. THAT IS A PART AND PARCEL OF THE PRINCIPLE OF NATUR AL JUSTICE. WHERE AN AUTHORITY IS REQUIRED TO ACT IN A QUASI-JUDICIAL CA PACITY, IT IS IMPERATIVE TO GIVE THE APPELLANT AN ADEQUATE OPPORT UNITY OF BEING HEARD BEFORE DECIDING THE APPEAL. OPPORTUNITY OF HE ARING DOES NOT 4 ALWAYS NECESSARILY MEAN GIVING A PERSONAL HEARING. A WRITTEN REPRESENTATION, IF COMPLETE AND ELABORATE IN ALL RE SPECTS FULLY EXPLAINING THE POINTS OF VIEW OF THE APPELLANT, WHE N ACCEPTED MAY, IN SOME CASES, AMOUNT TO AFFORDING OPPORTUNITY OF HEAR ING. WHAT PARTICULAR RULE OF NATURAL JUSTICE SHOULD APPLY TO A GIVEN CASE MUST ALSO DEPEND TO A GREAT EXTENT ON THE FACTS AND CI RCUMSTANCES OF THAT CASE. IN THAT VIEW OF THE MATTER, IT WAS HELD THAT WHERE NO EFFECTIVE OPPORTUNITY OF BEING HEARD WAS GIVEN TO THE APPELL ANT IN DISPOSING OF HIS APPEAL INSPITE OF HIS EXPRESS REQUEST THAT HIS COUN SEL SHOULD BE HEARD, THE ORDER MUST BE QUASHED. 6. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUM STANCES OF THE PRESENT CASE, AND ALSO THE SETTLED LEGAL POSITION, WE THINK IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDERS OF LEARNED CIT (APPEA LS) IN TOTO AND REMAND THE MATTER TO THE LEARNED CIT (APPEALS) WIT H THE DIRECTION TO DECIDE THE APPEAL OF THE ASSESSEE AFRESH IN ACCORDA NCE WITH LAW AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. THE LEARNED CIT (APPEALS) IS DIRECTED TO DECIDE TH E APPEALS OF THE ASSESSEE PREFERABLY WITHIN FOUR MONTHS FROM THE DA TE OF RECEIPT OF COPY OF THIS ORDER. 7. AT THIS STAGE, WE ARE NOT OFFERING ANY COMMENTS ON THE MERITS OF THE CASE. 8. FOR STATISTICAL PURPOSES, THE APPEALS OF THE ASS ESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22.12.2015 SD/- SD/- (RANO JAIN) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT DATED : 22 ND DECEMBER, 2015 5 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR