Sh. Babu Ram Arora, Jalandhar V. The Income Tax Officer, Jalandhar

ITA 78/ASR/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5600 (ITAT-AMRITSAR)
• Duration Of Justice: 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 06-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: J S BHASIN
• Keywords: Principle of natural justice
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR (SMC) BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER I.T.A. NOS. 78 TO 81 (ASR)/2017 ASSESSMENT YEARS: 2004-05, 2006-07, 2008-09 & 2010-11 PAN: AASPA6089R SH. BABU RAM ARORA, 52 SHANKAR GARDEN COLONY, JALANDHAR. VS. INCOME TAX OFFICER, WARD III (1), JALANDHAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. J. S. BHASIN (ADV.) RESPONDENT BY: SH. RAHUL DHAWAN, (D. R.) DATE OF HEARING: 20.04.2017 DATE OF PRONOUNCEMENT: 09.05.2017 ORDER PER DIVA SINGH,JM : THE PRESENT APPEALS HAVE BEEN FILED BY THE ASSESSEE AS SAILING THE CORRECTNESS OF THE ORDER DATED 13.01.2012, 10.04.2014, 10.0 4.2014 & 18.02.2013 OF CIT (A) JALANDHAR, PERTAINING TO ASST. YEARS 2 004-05, 2006- 07, 2008-09 & 2010-11 RESPECTIVELY. SINCE IDENTICAL GROUND S HAVE BEEN RAISED IN ALL THE APPEALS AND THE PRAYER ALSO REMAINS IDENT ICAL, ACCORDINGLY, GROUNDS FROM ITA NO. 78/ASR/2017 ARE REPRO DUCED FOR READY REFERENCE :- 1. THAT THE IMPUGNED ORDER OF LD. CIT(A), DISMISSING THE ASSESSEES APPEAL FOR NON APPEARANCE, IS NOT SUSTAINABLE INASMUCH AS THE ASSESSEE BEING IN PRISON, WAS NOT IN A POSITION TO MAKE APPEARANCE OR EVEN AU THORIZE HIS COUNSEL TO REPRESENT THE CASE. 2. THAT THE ORDER OF LD. CIT(A), BEING IN VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE, DESERVES TO BE SET ASIDE FOR A DENOVO CONS IDERATION OF THE CASE ON MERITS. 3. THAT THE ORDER OF THE LD. CIT(A) IS AGAINST LAW AND FACTS OF THE CASE. 2. INVITING ATTENTION TO THE GROUNDS, THE LD. AR SUBMITTE D THAT THE ASSESSEE REMAINED UNREPRESENTED ON THE DATE OF HEARING BEFORE THE CIT(A) ON ACCOUNT OF THE FACTS SET OUT IN THE GROUND ITSELF. IN SUPPORT OF THE SAID, ASSERTION COPY OF CUSTODY CERTIFICATE WAS RELIED UPON. REFER RING TO THE SAME IT WAS HIS SUBMISSION THAT THE ASSESSEE WHO WAS A PROPERTY DEALER AT THE RELEVANT POINT OF TIME REMAINED ENGAGED CONTINUOUS LY OVER THE YEARS ON ACCOUNT OF CIVIL AND CRIMINAL CASES HAVING BEEN FILED AGAINST HIM - 2 - BY DISPUTES RAISED BY CERTAIN PARTIES. INVITING ATTENTION T O THE COPY OF CUSTODY CERTIFICATE FILED IN PUNJABI, EMPHASIS WAS INVITED TO T HE FOLLOWING LIST OF 8 CASES MENTIONED THEREIN: MUKADMA NO. 92/202014 DATED 04.06.2014 MUKADMA NO. 347/2013 MUKADMA NO. 142/2012 MUKADMA NO. 404/2016 MUKADMA NO. 332/2016 MUKADMA NO. 332/2016 MUKADMA NO. 405/2016 MUKADMA NO. 406/2016 AS A RESULT THEREOF, IT WAS SUBMITTED, THE ASSESSEE EITHER REMA INED ON BAIL OR WAS RUNNING AROUND TO GET PROPER LEGAL ADVICE OR IN P RISON. AS A RESULT OF THIS FACT, EVEN THE PROCEEDINGS BEFORE THE ASSESSING O FFICER IN SOME OF THE YEARS, IT WAS SUBMITTED, WERE COMPLETED U/S 144 AN D EVEN WHERE THEY HAVE BEEN CONCLUDED U/S 143 (3) EVEN THERE, THE ASSESSE E HAS NOT BEEN ABLE TO ACTUALLY PROPERLY PARTICIPATE AS AFTER APPEARING ONCE, THE ASSESSEE COULD NOT PLACE NECESSARY FACTS OR EVIDENCES IN SUPPORT OF HIS CLAIM DUE TO CONSTANT LITIGATION ETC. ON ACCOUNT OF THIS FACT, IT WAS SUB MITTED THAT ASSESSMENT ORDERS ARE ALSO SKETCHY AS THE ASSESSEE H AS NOT BEEN ABLE TO ATTEND THE OFFICE OF THE ASSESSING OFFICER ALSO. ACCORDINGLY, IT WAS HIS SUBMISSION THAT IN CASE THE PRAYER FOR REMAND IS ACCEPTE D, HE WOULD GIVE HIS ORAL UNDERTAKING THAT THE ASSESSEE SHALL PARTICIPATE IN THE PROCEEDINGS AND THE APPEALS MAY BE REMANDED TO THE ASSESSING OFFICER. 3. THE LD. SENIOR DR THOUGH PLACED RELIANCE ON THE ORDERS OF THE LD.CIT (APPEALS), HOWEVER, DID NOT ASSAIL THE CORRECTNESS OF THE C USTODY CERTIFICATE. FURTHER, ON NOTING THAT THE FACTS ARE NOT COMING OUT FROM THE A.O., REMAND ON THE ORAL UNDERTAKING OF THE ASSESSEE WAS NOT OBJE CTED TO. 4. I HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE MA TERIAL AVAILABLE ON RECORD. I FIND THAT IN THE PECULIAR FACTS AND CIR CUMSTANCES IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BEN CH AND THE MATERIAL AVAILABLE ON RECORD, IT IS APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND RESTORE THE ISSUES BACK TO THE FILE OF THE ASS ESSING OFFICER ACCEPTING THE ORAL UNDERTAKING GIVEN BY THE LD. AR THAT T HE ASSESSEE SHALL NOT ABUSE THE PROCEDURE AND SHALL PARTICIPATE FULLY AND FA IRLY IN THE PROCEEDINGS BEFORE THE ASSESSING OFFICER. WHILE SO DIRECTING IT IS MADE CLEAR THAT IN THE EVENTUALITY OF ABUSE OF THE TRUST REPOS ED IN GOOD FAITH ON THE UNDERTAKING GIVEN ON BEHALF OF THE ASSESSEE, THE ASSESSING OFFICER - 3 - WOULD BE AT LIBERTY TO PASS A SPEAKING ORDER IN ACCORDAN CE WITH LAW ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09.05.2017. SD/- (DIVA SINGH) JUDICIAL MEMBER /GP/SR.PS/POONAM(CHD) COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: 2. THE ACIT, 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, I.T.A.T., TRUE COPY BY ORDER