ITO, Chandigarh V. Sh. S.S. Dhaliwal, Chandigarh

ITA 711/CHANDI/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60829 (ITAT-CHANDIGARH)
• Duration Of Justice: 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-05-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 25-04-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 27-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JAI SHREE SHARMA
• Assessee Lawyers: RAVINDER BINDLISH
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B CHANDIGARH BEFORE SHRI H.L.KARWA, VICE PRESIDENT AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER ITA NO.711/CHD/2011 ASSESSMENT YEAR: 2004-05 ITO, WARD 1(3), V SHRI S.S.DHALIWAL, CHANDIGARH. H.NO. 154, SECTOR 8-A, CHANDIGARH. PAN : ACQPD-9648F & ITA NO.712/CHD/2011 ASSESSMENT YEAR: 2004-05 ITO, WARD 1(3), V SHRI D.S.DHALIWAL, CHANDIGARH. H.NO. 154, SECTOR 8-A, CHANDIGARH. PAN : AARPD-0177A (APPELLANT) (RESPONDENT) APPELLANT BY : SMT.JAI SHREE SHARMA RESPONDENT BY : SHRI RAVINDER BINDLISH DATE OF HEARING : 25.04.2012 DATE OF PRONOUNCEMENT : 07.05.2012 ORDER PER MEHAR SINGH, AM THE PRESENT TWO APPEALS HAVE BEEN FILED BY THE REVENUE, AGAINST THE ORDER DATED 04.03.2011 PASSED BY THE LD. CIT(A) U/S 250(6) OF THE INCOME-TAX ACT,1961 (I N SHORT 'THE ACT'). AS SIMILAR ISSUES ARE INVOLVED IN BOTH THE APPEALS, THE SAME ARE BEING TAKEN UP TOGETHER, FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. AS SIMILAR GROUNDS OF APPEAL HAVE BEEN RAISED IN BOTH THE APPEALS, THE GROUNDS OF APPEAL AS RAISED IN ITA NO. 711/CHD/2011 (A.Y. 2004-05) ARE REPRODUCED HEREUNDE R: 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E AND IN LAW, LD. CIT(A) HAS GRAVELY ERRED IN 2 DELETING THE ADDITION OF RS. 13,15,625/- MADE BY THE AO TREATING THE INCOME OF THE ASSESSEE FROM UNEXPLAINED SOURCES AS THE ASSESSEE COULD NOT PROVE THE NATURE AND SOURCE OF THE CASH DEPOSITS IN THE BACK ACCOUNTS. 2. THE APPELLANT CRAVES TO ADD OR AMEND ANY GROUND ANY GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD OR DISPOSED OFF. 3. IT IS PRAYED THAT THE ORDER OF THE LD. CIT(A ) BE CANCELLED AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED 3. BEFORE THE BENCH, LD. 'DR' CONTENDED THAT CIT(A) DISREGARDED THE UNIVERSAL PRINCIPLE OF NATURAL JUST ICE AND PASSED THE ORDER WITHOUT AFFORDING OPPORTUNITY TO T HE ASSESSEE IN RESPECT OF EVIDENCES FILED BEFORE HIM F OR THE FIRST TIME. IT US FURTHER CONTENDED BY THE LD. 'DR' THAT NO EVIDENCES WERE FILED BEFORE THE AO. LD. 'AR' FAILED TO REBUT THIS CONTENTION OF THE ASSESSEE. 4. WE HAVE CAREFULLY PERUSED THE RIVAL SUBMISSIONS, FACTS OF THE CASE AND THE RELEVANT RECORD. THE AO IN THE CA SE OF SHRI S.S.DHALIWAL MADE ADDITION OF RS.13,15,625/- ON THE GROUND THAT ASSESSEE FAILED TO ESTABLISH THE SOURCE OF INV ESTMENT. THE AO, PROVIDED AMPLE AND REASONABLE OPPORTUNITY T O THE ASSESSEE BUT NO EVIDENCE WAS FILED BEFORE HIM. IT I S PERTINENT TO NOTE THAT THE ASSESSEE, VIDE LETTER DATED 31.08. 2009, SUBMITTED THAT THE AO SHOULD CALL FOR THE RECORDS O F THE ADI, BY ISSUING SUMMONS U/S 131. THE ASSESSEE FAILED TO FILE ANY EVIDENCE, TO JUSTIFY THE IMPUGNED INVESTMENT MADE I N SCO 162 SECTOR 38, CHANDIGARH. THE AO, MADE SIMILAR INV ESTMENT 3 IN THE CASE OF SHRI D.S.DHALIWAL, ON THE SAME GROUN DS. THE AO, PASSED THESE ASSESSMENT ORDERS ON 31.08.2009. 5. LD. CIT(A), VIDE ORDER DATED 04.03.2011, DELETED THE ENTIRE ADDITION MADE BY THE AO, AS PER FINDINGS REC ORDED IN PARA 12 OF THE APPELLATE ORDER. RELEVANT PARA IS RE PRODUCED HEREUNDER : 12 THE APPELLANT FILED ALL THE RELEVANT DOCUMENTS DURING THE ASSESSMENT PROCEEDINGS, THE PERUSAL OF WHICH REVEALS T HAT ALL THE PAYMENTS MADE FOR THE PURCHASE OF PROPERTY STAND EXPLA INED. ONCE AN AFFIDAVIT HAS BEEN FILED, THE ONUS WAS ON THE AO TO PROVE IT WRONG OR ACCEPT WHAT WAS STATED THEREIN. BY SIMPLY STATING THA T THE 'ARGUMENTS HAVE NO FORCE' IS NOT ENOUGH. IN MY VIEW, THE INFORMATION PROVIDED WAS VERY SPECIFIC AND WITHOUT POINTING OUT ANY DISCREPANCY, DISALLOWANCE OF THE ENTIRE AMOUNT OF RS.13,15,625/- A S UNEXPLAINED IS NOT JUSTIFIED. 6. IT IS UNDISPUTED FACT THAT THE EVIDENCES FILED B EFORE THE CIT(A), WERE NOT CONFRONTED TO THE AO. NO OPPORTUN ITY WAS GRANTED TO THE AO IN RESPECT OF EVIDENCES FILED BEF ORE CIT(A). IN VIEW OF THIS, THERE IS VIOLATION OF THE PROVISIO NS OF RULE 46A OF THE INCOME-TAX RULES,1963, WHICH EMBODIES THE CO NCEPT OF NATURAL JUSTICE. THE CONCEPT OF NATURAL JUSTICE EMBODIES THE PROPOSITION THAT JUSTICE SHOULD BE RENDERED AND MIS- CARRIAGE OF JUSTICE SHOULD BE PREVENTED. THE CORE OF ALL THE RULES IS FAIRNESS IN DECISION MAKING PROCESS AND DI RECT COMPLIANCE WITH THE CONCEPT OF NATURAL JUSTICE. T HE NATURAL JUSTICE IS A POTENT WEAPON FOR SECURING JUSTICE, WHICH IS NOT FETTERED BY TECHNICALITY, GRAMM ATICAL PEDANTRY OR LOGICAL PREVARICATION. THE DO CTRINE OF NATURAL JUSTICE AND ITS FIRST PRINCIPLE WAS FIRST P LANTED IN THE 4 GARDEN OF EDEN. NATURAL JUSTICE MEANS FAIR PLAY I N ACTION COUPLED WITH AGE OLD MAXIM THAT NONE SHOULD BE COND EMNED UNHEARD. SUCH PRINCIPLES ARE INGRAINED INTO THE CON SCIENCE OF MAN. A QUASI-JUDICIAL OR ADMINISTRATIVE DECISION RE NDERED IN VIOLATION OF THE AUDI ALTERAM PARTEM RULE IS NULL V OID. IT IS A PART OF PUBLIC POLICY AND IS A GUARANTEE FOR JUSTIC E TO THE CITIZENS. THE RULE OF NATURAL JUSTICE MUST BE R EAD INTO THE STATUTORY PROVISIONS UNLESS EXPRESSLY EXCLUDED. IN THIS CASE, NO OPPORTUNITY WAS AFFORDED BY THE CIT(A) TO THE AO AND THE ASSESSEE FAILED TO FILE ANY EVIDENCE BEFORE THE AO. 7. HAVING REGARD TO THE ABOVE LEGAL AND FACTUAL DIS CUSSIONS, BOTH THE CASES ARE RESTORED TO THE FILE OF THE AO, FOR FRESH ADJUDICATION, IN ACCORDANCE WITH LAW AND RELEVANT P ROVISIONS OF THE ACT, ON THE BASIS OF EVIDENCE FILED BY THE A SSESSEE AND ANY ENQUIRY TO BE MADE BY THE AO, AS DEEMED FIT. T HE AO SHOULD AFFORD PROPER AND REASONABLE OPPORTUNITY TO THE ASSESSEE AND THE ASSESSEE MUST COOPERATE IN THE ASS ESSMENT PROCEEDINGS. 8. IN THE RESULT, APPEALS OF THE REVENUE ARE ALLOWE D FOR STATISTICAL PURPOSES. 9. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH MAY,2012. SD/- SD/- (H.L.KARWA) (MEHAR SINGH) VICE PRESIDENT ACCOUNTANT MEMBER DATED: 7 TH MAY.2012. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT ,DR ASSISTANT REGISTRAR, ITAT CHANDIGARH