Padam Singh, Ghaziabad V. ITO, Ward-2(1), Ghaziabad

ITA 8156/DEL/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5078 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 24-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRIT LAL
• Keywords: Opportunity of being heard; Additional evidence; Set aside
• Section: 142(1); 250; 148; 144; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 8156/DEL/2018 ASSESSMENT YEAR: 2010-11 PADAM SINGH, VS. ITO, WARD 2(1), C/O ASHOK KUMAR YADAV, ADV. GHAZIABAD 10-INDRA MARKET, GURUDWARA ROAD, MODINAGAR, UTTAR PRADESH 201204 (PAN: BFTPP7117N) (ASSESSEE) (RESPONDENT) ASSESSEE BY :SH. SANTANU KANUNGO, ADV. REVENUE BY : SH. AMRIT LAL, SR. DR. ORDER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 28.09.2017 PASSED BY THE LD. CIT(A), GHAZIABAD REL ATING TO ASSESSMENT YEAR 2010-11 ON THE FOLLOWING GROUNDS. 1. THAT THE IMPUGNED ORDER PASSED U/S. 147/144 OF THE ACT IS BAD IN LAW AND NEEDS TO BE SET ASIDE. 2. THAT THE IMPUGNED ORDER U/S. 250 IS NOT SUSTAINABLE UNDER THE LAW AND NEEDS TO BE SET ASIDE. 3. THAT THE REASON TO BELIEF AS RECORDED BY THE ASSES SING AUTHORITY PRIOR TO THE ISSUANCE OF NOTICE U/S. 148 I S INSUFFICIENT AND WITHOUT ANY PROPER INVESTIGATION. 4. THAT THE SATISFACTION RECORDED AS PER MANDATORY PRO VISIONS OF SECTION 151 WERE OBTAINED FROM BOTH THE JCIT, RANG E-2, GHAZIABAD AND PRINCIPAL COMMISSIONER, GHAZIABAD, WH ICH IS PROCEDURE WISE AND LEGALLY AGAINST THE PROVISIONS O F SECTION 151. 2 5. THAT THE AO DID NOT SERVE ANY NOTICE TO THE APPELLAN TS ADDRESS PRIOR TO THE PROCEEDINGS U/S. 147/144. 6. THAT THE ITO HAS ERRED NOT TO ISSUE THE NOTICE U/S . 143(2), PRIOR TO PROCEED THE ASSESSMENT PROCEEDINGS U/S. 147/144. 7. THAT THE LD. CIT(A) HAS ERRED NOT TO REFER THE MATT ER TO AO FOR REMAND REPORT ON ALL THE EVIDENCES FILED BY THE AP PELLANT, AT THE TIME OF ADJUDICATION OF APPLICATION UNDER RULE 46A. IF NECESSARY ADDITIONAL / REVISED / MODIFIED GROUND S OF APPEAL SHALL BE FILED AT THE TIME OF HEARING OF INSTANT A PPEAL. PRAYER IT IS, THEREFORE, MOST RESPECTFULLY PRAYED THAT TH IS HONBLE TRIBUNAL MAY BE PLEASED TO PASS ORDER IN FAVOUR OF THE APPELLANT AND ALLOW ALL THE GROUND NOS. 1 TO 7 OF THIS INSTAN T APPEAL. SUCH OTHER FURTHER ORDER THIS HONBLE TRIBUNAL MAY DEEM FIT AND PROPER IN THE FACTS AND CIRCUMSTANCES OF THE C ASE IN FAVOUR OF THE APPELLANT AND AGAINST THE RESPONDENT. 2. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSES SEE STATED THAT AO DID NOT SERVE ANY NOTICE TO THE ASSESSEES ADDRESS PRIOR TO THE PROCEEDINGS U/S. 147/144 OF THE ACT AND PASSED THE EXPARTE ORDER WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE FOR S UBSTANTIATING HIS CASE. HE FURTHER SUBMITTED THAT BEFORE THE LD. CIT(A), AS SESSEE HAS FILED AN APPLICATION UNDER RULE 46A OF THE I.T. RULES, BUT H E DID NOT EVEN SEND THOSE DOCUMENTS AND DETAILS TO THE AO FOR HIS REMAN D REPORT AND DID NOT ADMIT THE SAME, WHICH WERE VERY MUCH ESSENTIAL TO D ETERMINE THE ISSUE IN DISPUTE AND ALSO HAS NOT GIVEN ADEQUATE OPPORTUN ITY OF HEARING AS WELL AS NOT PROVIDING OPPORTUNITY OF PRODUCING THE RELEV ANT EVIDENCES FOR SUBSTANTIATING THE CLAIM OF THE ASSESSEE. HE HAS AL SO FILED A PAPER BOOK 3 CONTAINING PAGES A-D & 1-41 IN WHICH HE HAS ATTACHE D THE COPY OF WRITTEN SUBMISSIONS; CERTIFIED COPY OF THE NOTICE U/S. 148 DATED 30.3.2017; CERTIFIED COPY OF THE NOTICE U/S. 142(1) DATED 8.9. 2017; CERTIFIED COPY OF THE NOTICE U/S. 144 DATED 25.9.2017; CERTIFIED COPY OF MEDICAL CERTIFICATE AS FILED BEFORE CIT(A), GHAZIABAD; COPY OF STATEMEN T OF AFFAIRS AS ON 31.3.2009 AND 31.3.2010, FILED BEFORE CIT(A); COPY OF STATEMENT OF COMPUTATION FOR THE AY 2010-11 AND FROM 26AS FOR AY 2010-11, FILED BEFORE CIT; KISAN BAHI (BOOK); PHOTOCOPY OF SAVINGS A/C OF CANARA BANK, MODI NAGAR BR. ; REGISTERED AGREEMENT TO SALE OF A GRICULTURAL LAND; RECEIPT OF SALE OF GRAM AND RICE; CERTIFIED COPY OF AFFIDAVIT AND ID PROOF OF MR. RAJ KUMAR AS ORIGINAL FILED BEFORE CIT(A); CERT IFIED COPY OF AFFIDAVIT AND ID PROOF OF MR. DEVENDER SINGH AS ORIGINAL FILE D BEFORE CIT(A); CERTIFIED COPY OF AFFIDAVIT, EMPLOYMENT AND ID PRO OF OF MR. SATENDER KUMAR AS ORIGINAL FILED BEFORE CIT(A) AND CERTIFIED COPY OF AFFIDAVIT OF THE APPELLANT IN ORIGINAL AS ORIGINAL FILED BEFORE CIT( A). HENCE, HE REQUESTED THAT THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE AO FOR FRESH CONSIDERATION, AFTER GIVING ADEQUATE OPPORTUNITY O F BEING HEARD TO THE ASSESSEE. 3. LD. SR. DR HAS NOT RAISED ANY OBJECTION ON THE R EQUEST OF THE LD. COUNSEL FOR THE ASSESSEE. 4. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE OR DERS OF THE REVENUE AUTHORITIES. I AM OF THE VIEW THAT AO HAS P ASSED THE EXPARTE ORDER U/S. 144/147 OF THE ACT WITHOUT GIVING ADEQUA TE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND IN APPEAL ASSESSE E FILED AN FILED AN APPLICATION UNDER RULE 46A OF THE I.T. RULES, 1962 FOR ADMITTING OF ADDITIONAL EVIDENCES, BUT LD. CIT(A) DID NOT EVEN S END THOSE DOCUMENTS AND DETAILS TO THE AO FOR HIS REMAND REPORT AND NOT ADMITTED THE SAME BY DISCUSSING THE SAME VIDE PARA NO. 4 & 5 OF HIS IMP UGNED ORDER. HOWEVER, IN MY CONSIDERED OPINION, THE ADDITIONAL EVIDENCES FILED UNDER RULE 46A AS DISCUSSED IN PARA NO. 4 & 5 OF THE IMPUGNED ORDER A RE VERY MUCH ESSENTIAL TO DETERMINE THE ISSUE IN DISPUTE AND NEE DS TO BE THOROUGHLY EXAMINED BY THE AO. HENCE, IN THE INTEREST OF JUST ICE, I ADMIT THE SAME 4 AND SET ASIDE THE ISSUES IN DISPUTE TO THE FILE OF THE AO WITH THE DIRECTIONS TO THOROUGHLY EXAMINE ALL THE EVIDENCES/ ADDITIONAL EVIDENCES TO BE FILED BY THE ASSESSEE AND THEN DECIDE THE IS SUES IN DISPUTE AFRESH, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ASSESSEE IS ALSO DIRECTED THROUGH HIS COUNSEL TO F ULLY COOPERATE WITH THE ASSESSING OFFICER IN THE PROCEEDINGS AND DID NOT T AKE ANY UNNECESSARY ADJOURNMENT. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 06/11/2019. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 06/11/2019 SRB COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES