Sh. Jaswant Singh, Khanna V. ITO, Khanna

ITA 726/CHANDI/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 95751 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-11-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 10-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Right to appeal
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES SMC CHANDIGARH BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT ITA NO. 726/CHD/2015 (ASSESSMENT YEAR: 2009-10) SH.JASWANT SINGH, VS. THE INCOME TAX OFFICER, C/O H.K.FINANCE CO., WARD-I1, LAKHVIR COMPLEX, KHANNA. LAHERI ROAD, KHANNA. PAN NO. BABPS8521E (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : NONE DATE OF HEARING : 04.12.2015 DATE OF PRONOUNCEMENT : 08.12.2015 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIR ECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS)-2, LUDHIANA DATED 8.6.2015 RELATING T O ASSESSMENT YEAR 2009-10. 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS : 1. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER OF LD. CIT(A) SUSTAINING THE ADDITION MADE BY THE LD. AO IS ILLEGAL, ARBITRARY AND VOID ABINITIO. 2 2. THAT ADDITION OF RS.9,00,000/- ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IS NOT MADE IN TRUE SPIRIT OF SECTION 68 OF INCOME TAX ACT. 3. THAT NO ADDITION OF UNEXPLAINED CASH DEPOSITS COU LD BE MADE, WHEN THE INCOME OF TRUCKS IS BEING ESTIMATED AS HELD BY JURISDICTIONAL HIGH COURT IN CASE OF CIT V/S AGGARWAL ENGG. CO. (2008) 302 ITR 246 (P&H). 4. THAT WITHOUT PREJUDICE TO THE ABOVE, THE ADDITION MADE AS ABOVE IS EXCESSIVE. 5. THAT THE OBSERVATION OF LD. CIT(A) AS WELL AS LD. A O IN RESPECT OF ADDITION MADE ARE WRONG AND CONTRARY TO THE ACTUAL FACTS OF THE CASE. 6. THAT THE AUTHORITIES BELOW HAVE FAILED TO CONSIDER THE EXPLANATION FILED BY THE ASSESSEE IN PROPER CONTEXT AND THE FINDINGS OF AUTHORITIES BELOW ARE NOT SUSTAINABLE IN LAW. 7. THAT APPELLANT PRAYS TO ADD OR AMEND ANY GROUND OF APPEAL BEFORE OR AFTER THE DATE OF HEARING. 3. IN THIS CASE, THE ASSESSING OFFICER FRAMED ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX A CT, 1961 (IN SHORT THE ACT) VIDE HIS ORDER DATED 20.1 2.2011 AND IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER MADE AN ADDITION OF RS.9 LACS BEING THE CASH DEPOSITS OF RS.3,76,500/- AND RS.7,12,400/- ON 3.1.2009 AND 10.1.2009 RESPECTIVELY. ON APPEAL, THE LEARNED CI T (APPEALS) DECIDED THE APPEAL OF THE ASSESSEE EX-PAR TE, AND HENCE THE ASSESSEE IS IN APPEAL BEFORE US. 4. THE ABOVE APPEAL WAS FIXED FOR HEARING ON 4.12.2015 BEFORE THIS BENCH OF THE TRIBUNAL. THERE WAS 3 NO REPRESENTATIVE ON BEHALF OF THE ASSESSEE AND AL SO FROM THE REVENUE. AFTER PERUSING THE RECORDS, I FIND TH AT THE LEARNED CIT (APPEALS) HAS PASSED THE IMPUGNED ORDER STATING THAT NO WRITTEN SUBMISSIONS WERE FILED. IN THE ABSENCE OF ANY REPLY FROM THE ASSESSEE, THE LEARNED CIT (APPEALS) DECIDED THE MATTER EX-PARTE OBSERVING THA T THE LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT THOSE WH O SLEEP OVER THEIR RIGHTS. FROM THE IMPUGNED ORDER, IT IS CRYSTAL CLEAR THAT THE LEARNED CIT (APPEALS) HAS NO T AFFORDED AN ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE PASSING THE IMPUGNED ORDER. IN THE CASE OF RADHIKA CHARAN BANERJEE V SAMBALPUR MUNICIPALITY, AIR 1979 ORI 69, WHEREIN THE HON'BLE ORISSA HIGH COURT HELD THAT A RIGHT OF APPEAL WHEREVER CONFERRED INCLUDES A RIGHT OF BEING AFFORDED AN OPPORTUNITY OF BEING HEARD, IRRESPECTIVE OF THE LAN GUAGE CONFERRING SUCH RIGHT. THAT IS A PART AND PARCEL OF THE PRINCIPLE OF NATURAL JUSTICE. WHERE AN AUTHORITY IS REQUIRED TO ACT IN A QUASI-JUDICIAL CAPACITY, IT IS IMPERATIVE TO GIVE THE APPELLANT AN ADEQUATE OPPORT UNITY OF BEING HEARD BEFORE DECIDING THE APPEAL. OPPORTUN ITY OF HEARING DOES NOT ALWAYS NECESSARILY 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 SOM E CASES, AMOUNT TO AFFORDING OPPORTUNITY OF HEARING. WHAT PARTICULAR RULE OF NATURAL JUSTICE SHOULD APPLY TO A GIVEN CASE MUST ALSO DEPEND TO A GREAT EXTENT ON THE FACT S 4 AND CIRCUMSTANCES OF THAT CASE. IN THAT VIEW OF THE MATTER, IT WAS HELD THAT WHERE NO EFFECTIVE OPPORTU NITY OF BEING HEARD WAS GIVEN TO THE APPELLANT IN DISPOSIN G OF HIS APPEAL INSPITE OF HIS EXPRESS REQUEST THAT HIS COUN SEL SHOULD BE HEARD, THE ORDER MUST BE QUASHED. 5. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, AND ALSO THE SET TLED LEGAL POSITION, I THINK IT APPROPRIATE TO SET ASIDE THE ORDER OF LEARNED CIT (APPEALS) IN TOTO AND REMAND THE MAT TER TO THE LEARNED CIT (APPEALS) WITH THE DIRECTIONS TO D ECIDE THE APPEAL OF THE ASSESSEE AFRESH IN ACCORDANCE WIT H LAW AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. THE LEARNED CIT (APPEALS) IS DIRECTED TO DECIDE THE APPEAL OF THE ASSESSEE PREF ERABLY WITHIN FOUR MONTHS FROM THE DATE OF RECEIPT OF COPY OF THIS ORDER. 6. AT THIS STAGE, I AM 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 THIS 8 TH DAY OF DECEMBER, 2015. SD/- (H.L.KARWA) VICE PRESIDENT DATED : 8 TH DECEMBER, 2015 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/THE CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH 5