Sukhivinder Pal Singh, New Delhi V. ITO ward-44(1), New Delhi

ITA 7463/DEL/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6156 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 11-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Corroborative evidences; Set aside
• Section: 154

Judgement Text

FIT FOR PUBLICATION IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC: NEW DELHI BEFORE, SMT. DIVA SINGH, JUDICIAL MEMBER I.T.A NO.7463/DEL/2019 (ASSESSMENT YEAR: 2011-12) SUKHVINDER PAL SINGH, KG-1/ 323, DDA FLATS, VIKASPURI, NEW DELHI-110 018 PAN-ABJPS 5558D VS. INCOME TAX OFFICER, WARD-44(I), NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SH. R.K. GUPTA, SR. DR DATE OF HEARING 16.08.2021 DATE OF PRONOUNCEMENT 14.09.2021 HEARING CONDUCT ED VIA WEBEX ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE W HEREIN THE CORRECTNESS OF THE ORDER DATED 24.06.2019 OF CIT(A) -15 PERTAINING TO 2011-12 ASSESSMENT YEAR IS ASSAILED ON VARIOUS GROU NDS INCLUDING GROUND NO.2 WHICH READ AS UNDER: 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-15 , NEW DELHI DID NOT AFFORD REASONABLE OPPORTUNITY ON THE INNOCUOUS APPELLANT T O FURNISH DOCUMENTARY EVIDENCE AND OTHER DETAILS AS DESIRED NECESSARY BY HIM. 2. AT THE TIME OF HEARING, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE. NOTICING THAT APART FROM THE ABOVE GROUN D, VARIOUS OTHER GROUNDS HAVE ALSO BEEN RAISED BY THE ASSESSEE, IT W AS DEEMED APPROPRIATE TO PASS OVER THE APPEAL. HOWEVER, EVEN IN THE SECOND ROUND, THE POSITION REMAINED THE SAME. ACCORDINGLY, AFTER HEARING THE ITA NO .7463 /DEL/2019 SUKHIVINDER PAL SI NGH VS. CIT PAGE 2 OF 6 LD. SR. DR IT WAS DEEMED APPROPRIATE TO PROCEED WIT H THE APPEAL EX- PARTE QUA THE ASSESSEE APPELLANT ON MERITS. 3. THE LD. SR. DR SUBMITTED THAT THE APPEAL OF THE ASSESSEE MAY BE DISMISSED IN VIEW OF THE FACT THAT NO DOCUMENTARY E VIDENCES WERE FILED BY THE ASSESSEE IN SUPPORT OF HIS CLAIM. HOWE VER, THE SAID REQUEST OF THE LD. SR. DR CANNOT BE ACCEPTED IN VIE W OF THE FACT THAT A PERUSAL OF THE PAGE-2 OF THE IMPUGNED ORDER SHOWS THAT IN PARA 3 SOME WRITTEN SUBMISSIONS SEEM TO HAVE BEEN FILED. THE SUBMISSIONS ADMITTEDLY WERE CONSIDERED TO BE INSUFFICIENT FOR W ARRANTING RELIEF. THE ADDITION MADE BY THE AO WAS CONFIRMED. THE SPE CIFIC FINDING UNDER CHALLENGE FROM THE IMPUGNED ORDER IS EXTRACTE D HEREUNDER FOR COMPLETENESS : 4. DECISION: THE CONTENTION OF THE APPELLANT HAS BEEN CONSIDERED AND THE ORDER OF AO HAS ALSO BEEN PERUSED. THERE WERE CASH DEPOSITS OF RS.29,44,900/- IN THE BANK ACCOUNT OF THE ASSESSEE. THE AO HAD DULY GRANTED THE OPPORTUNITY OF HEARING ON MULTIPLE OCC ASIONS. HOWEVER, THE ASSESSEE FAILED TO APPEAR AND COMPLY WITH THE NOTIC ES. THE ORDER HAS BEEN PASSED U/S 147/144 OF THE I.T. ACT. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE AR OF THE APPELLANT HAS CONTENDED THAT THE ASSESSEE WAS INTO THE BUSINE SS OF TRUCK PLYING BUSINESS AND WAS OWNING 8 TRUCKS. HOWEVER, NO DOCUMENTARY EVIDENCES WERE FURNISHED IN SUPPORT OF THE BUSINESS AND THE D ETAILS OF INVESTMENT INTO THE TRUCKS OWNED BY HIM. IT IS SEEN FROM THE ORDER OF THE AO, THE AO HAD NOT ADDED THE FULL DEPOSITS OF RS.29 ,44,900/-. THE AO HAS ONLY APPLIED A PROFIT RATE OF 20% IN ABSENCE OF ANY EXPLANATION FROM THE SIDE OF THE APPELLANT. THE ORDER OF THE AO IS VERY REASO NABLE AND FAIR. THEREFORE, I DO NOT FIND ANY REASON TO INTERFERE WITH THE FINDIN GS OF THE AO AND THE ADDITION OF RS. 5,83,980/- IS HEREBY CONFIRMED. (EMPHASIS SUPPLIED) 4. A PERUSAL OF THE ABOVE SHOWS THAT THE CLAIM MADE IN THE WRITTEN SUBMISSIONS WAS NOT SUBSTANTIATED BY THE AS SESSEE. A PERUSAL OF THE RECORD SHOWS THAT THERE IS NOTHING O N RECORD TO SHOW THAT ANY SUCH OPPORTUNITY WAS GRANTED BY THE C IT(A). IT IS WELL SETTLED THAT IN CASE AN ADJUDICATING AUTHORITY FINDS THE ITA NO .7463 /DEL/2019 SUKHIVINDER PAL SI NGH VS. CIT PAGE 3 OF 6 WRITTEN SUBMISSIONS ARE NOT SUFFICIENT AND COMPLETE THEN NECESSARILY THE FIRST APPELLATE AUTHORITY SHOULD PU T THIS DEFICIENCY TO THE NOTICE OF THE APPELLANT. WITHOUT ANY SPECIFIC COMMUNICATION TO THIS EFFECT, IT CANNOT BE SAID IN ALL FAIRNESS THAT AN EFFECTIVE OPPORTUNITY OF BEING HEARD HAS BE EN GRANTED TO THE ASSESSEE . ONCE IT IS SEEN THAT THE SUBMISSIONS WERE WITHOUT SUPPORTING DOCUMENTARY EVIDENCES THEN IN AN EFFECTIVE REPRESENTATION SUCH AN OPPORTUNITY NECESS ARILY NEEDS TO BE PROVIDED. NO SUCH EFFORT APPEARS TO HAVE BE EN DONE. IT IS WELL SETTLED THAT THE MERE MAKING AVAILABLE OF THE WRITTEN SUBMISSIONS BY AN ASSESSEE CANNOT BE UNILATEDLY SO INTERPRETED TO MEAN THAT RIGHT TO BE HEARD HAS BEEN WAIVED OFF. PRINCIPLES OF NATURAL JUSTICE MANDATE THAT A FAIR AND EFFECTIVE O PPORTUNITY OF BEING HEARD IS PROVIDED. RIGHT TO BE HEARD FORMS TH E BEDROCK OF THE CLUSTER OF PRINCIPLES OF FAIR HEARING WHICH GO BY THE NOMENCLATURES OF PRINCIPLES OF NATURAL JUSTICE. AU DI ALTEREM PARTEM WHICH IS ONE OF THE FOUNDATIONAL AND FUNDAME NTAL BEDROCKS OF NATURAL JUSTICE MEANS THAT NO ONE SHOULD BE CONDEMNED UN-HEARD . THOUGH THESE RULES ARE NOT NECESSARILY CODIFIED, HOWEVER, THESE HAVE SO EVOLVED OVER THE Y EARS THAT THEY ARE EXPECTED TO BE NECESSARILY ADHERED TO NOT ONLY WHEN STATUTORY PROVISIONS SO PROVIDE BUT THESE HAVE ALSO BEEN IMPLIEDLY READ INTO THE RULES AND NECESSARILY ARE R EQUIRED TO BE ADHERED TO ALSO BY QUASI ADMINISTRATIVE DECISION MA KING AUTHORITIES WHEREBY THE RIGHTS/INTERESTS OF THE PAR TY ARE ADVERSELY EFFECTED. IN SUCH CIRCUMSTANCES, FAIR PL AY AND RULE OF LAW NECESSITATES THAT THE PROCEDURE REQUIRED TO BE ADHERED TO NECESSARILY ENVISAGES A RIGHT TO BE HEARD. THE DUE PROCESS OF LAW ENVISAGES AN OPPORTUNITY OF FAIR REPRESENTATION . IT IS EVIDENT FROM THE IMPUGNED ORDER THAT THE RIGHT TO B E HEARD WAS ITA NO .7463 /DEL/2019 SUKHIVINDER PAL SI NGH VS. CIT PAGE 4 OF 6 NOT WAIVED OFF BY THE ASSESSEE BY MERE MAKING AVAIL ABLE OF THE WRITTEN SUBMISSIONS TO THE FIRST APPELLATE AUTHORIT Y. IT GOES WITHOUT SAYING THAT A PARTY MAY CHOOSE TO WAIVE THE RIGHT TO BE HEARD AND INSTEAD CHOOSE TO RELY ON WRITTEN SUBMISS IONS ONLY. HOWEVER, IT IS THE DUTY OF THE ADJUDICATING AUTHORI TY TO ENSURE THAT THE WAIVER SO MADE IS CONSCIOUSLY MADE AND WIT H FULL KNOWLEDGE AND UNDERSTANDING THAT THE RIGHT TO BE HE ARD EXISTS. THE RECORD IS SILENT ON THIS ASPECT. IN THE FACTS OF THE PRESENT CASE THERE IS NOTHING ON RECORD TO SHOW THAT THE RI GHT TO BE HEARD WAS CONSCIOUSLY AND KNOWINGLY WAIVED. SUPPOR T IS DRAWN FROM AMRIK SINGH BHULLAR VS. ITO [2021] 128 TAXMANN.COM 245 (CHANDIGARH TRIB.) WHEREIN A DETAILED EXAMINATION OF THE SPECIFIC ISSUE NAMELY WHETHER MAKING AVAILABLE OF W RITTEN SUBMISSIONS CAN BE SAID TO TANTAMOUNT TO A CONSCIOU S WAIVER OF RIGHT TO BE HEARD BY AN ASSESSEE WAS SPECIFICALLY C ONSIDERED. 13.1 CONFINING MYSELF ONLY TO THE PRINCIPLES OF NATURAL JUSTICE WHICH HAVE BEEN INVOKED. I AM OF THE VIEW THAT THE ANSWER POSED TO THE ABOVE QUESTION IS A 'NO'. THE WORD NATURAL JUSTICE IS DERIVED FROM THE ROMAN WORD 'JUS NATURALE' WHICH PRESUPPOSES PRINCIPLES OF NATURAL LAW INCLUDING JUS TICE, EQUITY, FAIR PLAY AND GOOD CONSCIENCE. FAIR PLAY PRE SUPPOSES FAIR NOTICE OF CHARGE, AND PLACE OF HEARING, OPPORTUNITY OF EFFECTIVE HEARING TO ADDRES S THE CHARGE AND SPEAKING ORDER ADDRESSING THE REASONS FOR AGREEING OR DISAGR EEING WITH THE CLAIMS PUT FORTH. 13.2 IN THE FACTS OF THE PRESENT CASE, IT IS SEEN THAT WRITTEN SUBMISSIONS HAD BEEN ADVANCED. IT IS SEEN THAT THE SUBMISSIONS WERE CONSIDERED BUT DID NOT FIND FAVOUR WITH THE FIRST APPELLATE AUTHORITY AS THE OR DER U/S 154 STOOD CONFIRMED. FROM THE BODY OF THE ORDER, IT IS NOT EVIDENT WHETH ER THE ASSESSEE WAS CONFRONTED WITH THE FACT THAT ITS WRITTEN SUBMISSIO NS WERE NOT SUFFICIENT FOR RELIEF PRAYED FOR AND THAT THE ASSESSEE WAS GIVEN AN OPPOR TUNITY OF BEING HEARD THEREAFTER. 13.3 IT IS TRITE LAW THAT IN THE EVENTUALITY, WRITTEN S UBMISSIONS OF THE ASSESSEE WERE FOUND TO BE INSUFFICIENT FOR GRANTING RELIEF A ND WERE CONSIDERED TO BE NOT RELEVANT, THEN THE ASSESSEE SHOULD IN ALL FAIRNESS BE NECESSARILY CONFRONTED WITH THE FACT THAT ITS CLAIM WAS NOT ALLOWABLE AND BE GI VEN DUE NOTICE THEREOF. THE PURPOSE BEING THAT IF THE ASSESSEE STILL HAS SOMETH ING FURTHER TO SAY, THE ITA NO .7463 /DEL/2019 SUKHIVINDER PAL SI NGH VS. CIT PAGE 5 OF 6 OPPORTUNITY OF SO SAYING SHOULD HAVE BEEN PROVIDED. THE ARBITRARY PRESUMPTION THAT THE ASSESSEE SHALL HAVE NOTHING TO STATE CANNO T BE UPHELD. 13.4 ACCORDINGLY, IN VIEW THEREOF, THE ORDER CANNOT BE UPHELD AND DESERVES TO BE SET ASIDE. 5. SIMILARLY IN HARBANS LAL V ITO [2018] 97 TAXMANN.COM 622 (CHANDIGARH - TRIB.) IT IS SEEN THAT WAIVER OF RIGHT TO BE HEARD HAS CLEARLY BEEN HELD TO NECESSITATE THAT THE WAIVER SO MADE IS KNOWINGLY AND CONSCIOUSLY MADE I.E. INTELLIGENTLY MADE AND WITH F ULL KNOWLEDGE AND UNDERSTANDING I.E. WITH THE FOREKNOWLEDGE THAT THE RIGHT TO BE HEARD EXISTS. THE ONUS TO ENSURE THAT THE WAIVER WAS MADE WITH FULL A ND CONSCIOUS KNOWLEDGE OF THE EXISTENCE OF THIS SACROSANCT RIGHT RESTS ON THE SHOULDERS OF THE ADJUDICATING AUTHORITY WHO IS TO ENSURE THAT THE ASSESSEE STAYS INFORMED OF HIS RIGHTS AND CONSEQUENT DUTIES. THERE IS NOTHING ON RECORD TO S HOW THAT THE FIRST APPELLATE AUTHORITY CAN BE JUSTIFIABLY HELD TO FORM THE VIEW IN THE FACTS OF THE PRESENT CASE THAT THE ASSESSEE WAS SO INFORMED OF ITS RIGHTS AND STILL CHOSE TO WAIVE THEM. THE ADJUDICATING AUTHORITY CANNOT BE PERMITTED TO UNILA TERALLY PRESUME THAT THERE WAS NO SUPPORTING EVIDENCE WITH THE ASSESSEE AND HENCE ASSESSEE HAD NOTHING FURTHER TO SAY. 6. THUS, IN THE LIGHT OF THE LEGAL POSITION AS SET HEREINABOVE, I AM OF THE VIEW THAT SINCE THERE IS NOTHING AVAILABLE O N RECORD TO SHOW THAT THE RIGHT TO BE HEARD WAS WAIVED OFF BY THE AS SESSEE, LET ALONE CONSCIOUSLY WAIVED OFF A FAIR OPPORTUNITY OF BEING HEARD EFFECTIVELY HAS NOT BEEN MADE AVAILABLE. ACCORDINGLY, ON A CON SIDERATION OF FACTS, CIRCUMSTANCES AND LEGAL POSITION AS ENUNCIAT ED HEREINABOVE AND IN THE INTERESTS OF SUBSTANTIAL JUSTICE IT IS D EEMED APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER DIRECTING THE ASSESSEE TO PLACE FULL FACTS, EVIDENCE ALONGWITH SUPPORTING CLAIMS BEFORE THE FIRST APPELLATE AUTHORITY. IT IS MADE CLEAR THAT THE LD. CIT(A) SH ALL ENTERTAIN THE FRESH EVIDENCES AND PASS AN ORDER IN ACCORDANCE THE LAW. SAID ORDER ITA NO .7463 /DEL/2019 SUKHIVINDER PAL SI NGH VS. CIT PAGE 6 OF 6 WAS PRONOUNCED AT THE TIME OF VIRTUAL HEARING ITSEL F IN THE PRESENCE OF THE PARTIES VIA WEBEX. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 14 TH SEPTEMBER 2021 SD/- (DIVA SINGH) JUDICIAL MEMBER DATED: 14 TH SEPTEMBER, 2021 PK/PS/POONAM(CHD) *KAVITA ARORA, SPS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI