Mr. Mandeep Singh, Sirhind V. ITO, Mandi Gobindgarh

ITA 691/CHANDI/2015

• Counselvise Citation: 69121514 RSA 2015
• Duration Of Justice: 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 22-12-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 20-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Opportunity of being heard; Principle of natural justice; Assessment record; Right to appeal
• Section: 143(3)

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 NO. 691/CHD/2015 ASSESSMENT YEAR: 2010-11 MR MANDEEP SINGH, VS. THE ITO, SIRHIND SIRHIND MANDI GOBINDGARH PAN NO. BLMPS3156B (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SH. MANJIT SINGH DATE OF HEARING : 22.12.2015 DATE OF PRONOUNCEMENT : 28.12.2015 ORDER PER H.L.KARWA, VP THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF CIT(A), PATIALA DATED 27.11.2014 RELATING TO ASSESSMENT YEA R 2010-11. 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLL OWING GROUNDS:- 1. THAT ON THE FACTS AND THE CIRCUMSTANCES O F THE CASE, THE ORDER OF LEARNED CIT(A) IS BAD IN LAW. 2. THAT THE WORTHY COMMISSIONER OF INCOME TA X (APPEALS) HAS ERRED IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN CONFIRMING THE ADDITION OF RS. 21,56,000/- MADE BY HIM ON ARBITRARY AND ESTIMATED BASIS ON ACCOUNT OF UNEXPLA INED CASH DEPOSITS, WITHOUT GIVING ANY EVIDENCE AND WITHOUT P ROPERLY CONSIDERING THE WRITTEN AND ORAL SUBMISSIONS MADE B Y THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDIN GS. 2 3. THAT THE WORTHY COMMISSIONER OF INCOME TA X (APPEALS) HAS ERRED IN DECIDING THAT THE SOURCES OF CASH DEPO SITS AMOUNTING TO RS. 2I,56,000/-HAVE NOT BEEN PROVE D, EVEN WHEN THE CASH FLOW STATEMENT, BANK STATEMENTS, AFFIDAVITS, ETC. ARE ON ASSESSMENT RECORDS. 4. THAT THE WORTHY COMMISSIONER OF INCOME TA X (APPEALS) HAS ERRED IN CONFIRMING THE ADDITIONS MADE BY THE LEARNED ASSESSING OFFICER ON ACCOUNT OF CASH DEPOSITS IGNOR ING THE PERSONAL PRESENCE AND REPLIES OF THE THEN MANAGER/C ASHIER AND IGNORING THE HUMAN PROBABILITIES. 5. THAT THE WORTHY COMMISSIONER OF INCOME TA X (APPEALS) HAS ERRED IN CONFIRMING THE ADDITIONS MADE BY THE LEARNED ASSESSING OFFICER ON ACCOUNT OF INTEREST INCOME AMO UNTING TO RS. 71,262/-. 6. THAT THE WORTHY COMMISSIONER OF INCOME TA X (APPEALS) HAS ERRED IN CONFIRMING THE ADDITIONS OF RS. 22,27,262/- MADE BY THE LEARNED ASSESSING OFFICER ON THE B ASIS OF CONJECTURES, SURMISES AND WITHOUT CONSIDERING THE RELEVANT FACTS AND SUBMISSIONS PRODUCED BY THE APPE LLANT. 7 THAT THE APPELLANT HAS NOT BEEN GIVEN SUFFICIENT OPPORTUNITY TO PRESENT THE CASE AND THE ADDITIONS H AVE BEEN MADE AGAINST THE FACTS AND CIRCUMSTANCES OF THE CAS E. 3. IN THIS CASE, THE ASSESSING OFFICER FRAMED THE A SSESSMENT ORDER U/S 143(3) OF THE ACT ON 19.2.2013. IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER MADE CERTAIN ADDITIONS / DISALLOWANCES. THE ASSESSING OF FICER CHALLENGED THE ORDER OF THE ASSESSING OFFICER BY WAY OF APPEAL BEFORE THE C IT(A). THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE BY PASSING AN EX-PARTE ORDER. THE RELEVANT OBSERVATIONS OF THE CIT(A) ARE AS UNDER:- 4. AS PER RECORD, THE CASE WAS FIXED ON VARIOUS D ATED E.G. ON 30.09.2014 & 16.10.2014. HOWEVER, NOBODY APPEAR ED TILL DATE. THEREAFTER, THE CASE WAS AGAIN FIXED FOR 22.1 1.2014 THOUGH ASSESSING OFFICER WHICH IS DULY SERVED ON 17 .11.2014 AS PER REPORT OF ASSESSING OFFICER. BUT NOBODY APPE ARED TILL DATE. IN THIS STATE OF POSITION, I HAVE NO OPTION B UT TO OPT FOR EX. PARTE DECISION RELYING UPON THE DECISION OF HON 'BLE SUREPEME COURT IN THE CASE OF CIT VS. B.N. BHATTAC HARGEE AND ANOTHER, 118 ITR 461 WHEREIN IT IS HELD THAT T HE 3 APPEALS DOES NOT MERELY MEAN FILING OF THE MEMO OF APPEAL BUT EFFECTIVELY PURSING THE SAME. WE ARE, ACCORDING LY, CONSTRAINED TO DISMISS THE APPEAL FOR WANT OF PROSE CUTION. FURTHER IN THIS CASE, THE ASSESSING OFFICER HAS MAD E ADDITION ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN THE BANK ACCOUNT AND INTEREST EARNED. THE ISSUE IS DISCUSSED IN DETA ILS IN THE ASSESSMENT ORDER AND NECESSARY CLARIFICATION FROM B ANK WAS TAKEN REGARDING ENTRY OF RS. 18 LAKH ALSO. THE POIN TED RAISED BY THE APPELLANT HAS ALREADY BEEN DISCUSSED IN THE ASSESSMENT ORDER AND AFTER DUE CONFIRMATION FROM THE BANK AUT HORITIES THE ADDITION HAS BEEN MADE. THE SCROLL NUMBER SHOW S THAT DEPOSIT IS MADE PRIOR TO WITHDRAWAL. THE APPELLANT FAILED TO PROVIDE ANY EVIDENCE TO THE CONTRARY. 5. THEREFORE,, LOOKING TO THE FACTS OF THE CASE, TH E APPEAL IS DISMISSED. 4. FIRSTLY, WE WILL DECIDE GROUND NO.7 OF THE APPEA L, WHICH GOES TO THE ROOT OF THE MATTER. AFTER CONSIDERING THE ASSESSEES SU BMISSIONS, WE ARE OF THE CONSIDERED OPINION THAT LD. CIT(A) HAS NOT AFFORDED AN ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE AP PEAL ASSESSEE FILED BEFORE HIM. IN THE CASE OF RADHIKA CHARAN BANERJEE V SAMB ALPUR MUNICIPALITY, AIR 1979 ORI 69, WHEREIN THE HON'BLE ORISSA HIGH COURT HELD THAT A RIGHT OF APPEAL WHEREVER CONFERRED INCLUDES A RIG HT OF BEING AFFORDED AN OPPORTUNITY OF BEING HEARD, IRRESPECTIV E OF THE LANGUAGE CONFERRING SUCH RIGHT. THAT IS A PART AND PARCEL OF THE PRINCI PLE OF NATURAL JUSTICE. WHERE AN AUTHORITY IS REQUIRED TO ACT IN A QUASI-JUDICIAL CAPACITY, IT IS IMPERATIVE TO GIVE THE APPELLANT AN ADEQUATE OPPORTUNITY OF BEING HEARD BEFORE DECIDING THE APPEAL. OPPORTUNITY OF HEARING DOES NOT ALWAYS NECE SSARILY MEAN GIVING A PERSONAL HEARING. A WRITTEN REPRESENTATION, IF COMP LETE AND ELABORATE IN ALL RESPECTS FULLY EXPLAINING THE POINTS OF VIEW OF THE APPELLANT, WHEN ACCEPTED MAY, IN SOME CASES, AMOUNT TO AFFORDING OPPORTUNITY OF H EARING. WHAT PARTICULAR RULE OF NATURAL JUSTICE SHOULD APPLY TO A GIVEN CASE MUS T ALSO DEPEND TO A GREAT 4 EXTENT ON THE FACTS AND CIRCUMSTANCES OF THAT CAS E. IN THAT VIEW OF THE MATTER, IT WAS HELD THAT WHERE NO EFFECTIVE OPPORTUNITY OF BEING HEARD WAS GIVEN TO THE APPELLANT IN DISPOSING OF HIS APPEAL INSPITE OF HIS EXPRESS REQUEST THAT HIS COUNSEL SHOULD BE HEARD, THE ORDER MUST BE QUASHED. 5. 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 ORDER IN TOTO AND REMAND THE MATTER TO THE LEARNED CIT (APPEALS) WITH THE DIRECTION TO DECIDE THE APP EAL OF THE ASSESSEE AFRESH IN ACCORDANCE WITH LAW AFTER AFFORDING DUE A ND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LE ARNED CIT (APPEALS) IS DIRECTED TO DECIDE THE APPEAL OF THE ASSESSEE P REFERABLY WITHIN FOUR MONTHS FROM THE DATE OF RECEIPT OF COPY OF THIS ORD ER. 6. AT THIS STAGE, WE ARE NOT OFFERING ANY COMMENTS ON THE MERITS OF THE CASE. 7. FOR STATISTICAL PURPOSES, THE APPEAL OF THE ASSE SSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28.12.2015 SD/- SD/- (RANO JAIN) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT DATED : 28 TH DECEMBER, 2015 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR