Sh. Prince Garg, Panchkula V. ACIT, Panchkula

ITA 83/CHANDI/2015

• Counselvise Citation: 8321514 RSA 2015
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 06-10-2015
• Assessment Year: 2011-2012
• Appeal Filed On: 22-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Opportunity of being heard; Principle of natural justice; Right to appeal
• Section: 143(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, CHANDIGARH BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT & MS. RANO JAIN, ACCOUNTANT MEMBER ITA NO. 83/CHD/2015 ASSESSMENT YEAR: 2011-12 SH. PRINCE GARG, VS. THE ACIT, CIRCLE, PANCHKULA PANCHKULA PAN NO. AJFPG5890A & ITA NO. 84/CHD/2015 ASSESSMENT YEAR: 2011-12 M/S ROYALE EMPIRE, VS. THE ACIT, CIRCLE, PANCHKULA PANCHKULA PAN NOAALFR1513J (APPELLANT) (RESPONDENT) APPELLANT BY : SH. AJAY JAIN RESPONDENT BY : SH. S.K.MITTAL DATE OF HEARING : 06.10.2015 DATE OF PRONOUNCEMENT : 03.11.2015 ORDER PER H.L.KARWA, VP BOTH THE APPEALS FILED BY THE ASSESSES INVOLVING SI MILAR ISSUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. FIRSTLY, WE WILL TAKE UP APPEAL IN ITA NO. 83/CHD/2015. 2 2. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AG AINST THE ORDER OF CIT(A), PANCHKULA DATED 26.12.2014 RELATING TO ASSESSMENT Y EAR 2011-12. FIRSTLY, WE WILL TAKE UP GROUND NO.2 OF THE APPEAL WHICH GOES T O THE ROUTE OF THE MATTER AND THE SAME READS AS UNDER:- 2. THAT THE LEARNED CIT(A) HAS WRONGLY UPHELD THA T THE ASSESSEE HAS BEEN PROVIDED SUFFICIENT OPPORTUNITIES WITHOUT APPRECIATING THE FACT THAT ASSESSEE WAS IN POLICE C USTODY DUE TO SOME PERSONAL REASON & OTHER PARTNER SH JIWA N GARG WAS ON BED DUE TO HIP REPLACEMENT SURGERY. THE APPELLANT WAS NOT IN A POSITION TO SUBMIT THE REQUI SITE INFORMATION & THEREFORE IT IS PRAYED THAT THE ORDER OF LEARNED ASSESSING OFFICE BE SET ASIDE TO THE FILE O F ASSESSING OFFICER FOR FRESH ADJUDICATION AS THE ASSESSEE COUL D NOT AVAIL THE SUFFICIENT OPPORTUNITY TO PRESENT HIS CAS E BEFORE THE ASSESSING OFFICER. 3. THE ASSESSEE IS AN INDIVIDUAL AND THE ASSESSMENT YEAR INVOLVED IS 2011- 12. THE ASSESSING OFFICER FRAMED THE ASSESSMENT U/S 143(3) OF THE ACT DETERMINING THE TAXABLE INCOME AT RS. 16,72,87,030/ -. THE ASSESSING OFFICER MADE CERTAIN ADDITIONS / DISALLOWANCES IN THE ASSES SMENT MADE ON 20 TH FEBRUARY, 2014. 4. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). THE LD. CIT(A) OBSERVED THAT THERE WAS NO COMPLIANCE TO NOTICE WHICH WAS SERVED AT THE GIVEN ADDRESS OF THE ASSESSEE. HE FURTHER STATED THAT DESPITE GIVEN REPEATED OPPORTUN ITIES OF BEING HEARD, THERE HAS BEEN NO COMPLIANCE TO THE NOTICES. HE THEREFORE, P RESUMED THAT THE ASSESSEE WAS NOT INTERESTED TO PURSUE THE MATTER. IN THE ABS ENCE OF ANY SUBMISSIONS FROM THE ASSESSEE, THE CIT(A) DECIDED THE GROUNDS OF APP EAL ON MERITS ON THE BASIS OF FACTS AVAILABLE ON RECORD. THE MAIN GROUND OF APPEA L WAS REJECTED BY THE CIT(A) HENCE THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUN AL. 3 5. WE HAVE HEARD SHRI AJAY GARG, LD. COUNSEL FOR T HE ASSESSEE AND SHRI S.K.MITTAL, LD. DR AT LENGTH. SHRI AJAY GARG, LD . COUNSEL FOR THE ASSESSEE SUBMITTED THAT CIT(A) WAS NOT JUSTIFIED IN STATING THAT THE ASSESSEE WAS PROVIDED SUFFICIENT OPPORTUNITIES WITHOUT APPRECIAT ING THE FACT THAT THE ASSESSEE WAS IN POLICE CUSTODY DUE TO SOME PERSONAL REASONS AND WAS NOT IN A POSITION TO SUBMIT THE REQUISITE INFORMATION. THE ASSESSEE HAS ALSO SUBMITTED LIST OF EVENTS STATING THAT FATHER OF THE ASSESSEE WAS ADMITTED IN MAX HOSPITAL FOR TOTAL HIP REPLACEMENT AND REMAINED ON BED TILL 26.5.2014. HE FURTHER SUBMITTED THAT ASSESSEE WAS ARRESTED ON 20.12.2013 BY PANCHKULA PO LICE AND TAKEN INTO CUSTODY. HE FURTHER SUBMITTED THAT ON 30.1.2014, IN DIAN OVERSEAS BANK HAS TAKEN OVER THE RESIDENTIAL AND BUSINESS PREMISES OF THE ASSESSEE AND HIS FAMILY MEMBERS. IT WAS BROUGHT TO OUR NOTICE THAT ON 5.4.2 014, THE LD. SESSION JUDGE, PANCHKULA GRANTED BAIL TO THE ASSESSEE AND WAS REL EASED FROM THE CUSTODY. IN OUR VIEW THE ASSESSEE WAS PREVENTED BY SUFFICIENT C AUSE FROM APPEARING BEFORE THE LD. CIT(A). AT THE SAME TIME WE MAY ALSO OBSER VE HERE THAT THE LD. CIT(A) HAS NOT AFFORDED AN ADEQUATE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE BEFORE DECIDING HIS APPEAL. IT IS WELL SETTLED LAW THAT RI GHT OF APPEAL WHEREVER CONFERRED INCLUDES A RIGHT OF BEING AFFORDED AN OPP ORTUNITY OF BEING HEARD, IRRESPECTIVE OF THE LANGUAGE CONFERRING SUCH RIGHT . THAT IS A PART AND PARCEL OF THE PRINCIPLE OF NATURAL JUSTICE. IT IS ALSO WELL S ETTLED LAW THAT WHERE AN AUTHORITY IS REQUIRED TO ACT IN A QUASI JUDICIAL CAPACITY, IT IS IMPERATIVE TO GIVE ASSESSEE / APPELLANT AN ADEQUATE OF BEING HEARD BEFORE DECIDIN G THE APPEAL. TAKING INTO CONSIDERATION THE TOTALITY OF FACTS AND CIRCUMSTANC ES OF THE CASE, WE SET ASIDE THE ORDER OF CIT(A) IN TOTO AND REMAND THE MATTER T O CIT(A) WITH A DIRECTION TO DECIDE THE APPEAL OF THE ASSESSEE AFRESH IN ACCORD ANCE WITH LAW AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. NO COMMENTS ARE BEING GIVEN ON THE MERITS OF THE CASE AS THE SAME I S NOT REQUIRED AT THIS JUNCTURE. 6. FOR STATISTICAL PURPOSES, THE APPEAL IS ALLOWED. 4 ITA NO. 84/CHD/2015 7. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AG AINST THE ORDER OF CIT(A)- PANCHKULA DATED 31.12.2014 RELATING TO ASSESSMENT YEAR 2011-12. FIRSTLY, WE WILL TAKE UP GROUND NO.2 OF THE APPEAL, WHICH READS AS UNDER:- 2. THAT THE LEARNED CIT(A) HAS WRONGLY UPHELD THA T THE ASSESSEE HAS BEEN PROVIDED SUFFICIENT OPPORTUNITIES WITHOUT APPRECIATING THE FACT THAT ASSESSEE WAS IN POLICE C USTODY DUE TO SOME PERSONAL REASON & WAS NOT IN A POSITION TO SUBMIT THE REQUISITE INFORMATION & THEREFORE IT IS PRAYED THAT THE ORDER OF LEARNED ASSESSING OFFICE BE SET A SIDE TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJUDICATION AS THE ASSESSEE COULD NOT AVAIL THE SUFFICIENT OPPORTUNITY TO PRESENT HIS CASE BEFORE THE ASSESSING OFFICER. 8. IN THIS CASE THE ASSESSING OFFICER FRAMED THE AS SESSMENT U/S 143(3) OF THE ACT ON 25.2.2014. THE ASSESSEE SUBMITTED ITS RETURN OF INCOME ON 29.9.2011 DECLARING LOSS OF RS. 4,47,98,310/-. THE ASSESSING OFFICER FRAMED THE ASSESSMENT DETERMINING ASSESSABLE INCOME AT RS. 12,35,96,820/- . WHILE FRAMING THE ASSESSMENT, THE ASSESSING OFFICER MADE CERTAIN ADDI TIONS / DISALLOWANCES. 9. AGGRIEVED BY THE ORDER OF THE CIT(A), THE ASSESS EE CARRIED THE MATTER IN APPEAL BEFORE LD. CIT(A) AND LD. CIT(A) PASSED AN E X. PARTE ORDER QUA THE ASSESSEE AND DISMISSED THE APPEAL OF THE ASSESSEE. THE LD. CIT(A) OBSERVED THAT THERE WAS NO COMPLIANCE TO THE NOTICE WHICH WA S SERVED AT THE GIVEN ADDRESS. HE PRESUMED THAT ASSESSEE WAS NOT INTEREST ED IN PURSUING ITS APPEAL. 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE AL SO PERUSED THE MATERIALS AVAILABLE ON RECORD. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT PARTNER OF THE ASSESSEE FIRM WAS ADMITTED IN MAX HOSPITAL FOR TOTA L HIP REPLACEMENT AND REMAINED ON BED TILL 26.5.2014. HE FURTHER POINTE D OUT THAT PARTNER OF THE ASSESSEE FIRM SHRI PRINCE GARG WAS ARRESTED BY PANC HKULA POLICE ON 20.12.2013 5 AND WAS TAKEN INTO CUSTODY. HE FURTHER SUBMITTED T HAT ON 30.1.2014, INDIAN OVERSEAS BANK TAKEN OVER THE RESIDENTIAL AND BUSINE SS PREMISES OF THE PARTNERS OF THE ASSESSEE FIRM. IT WAS ALSO STATED THAT PART NER OF THE ASSESSEES FIRM WAS RELEASED ON BAIL ON 5.4.2014. IN THE ABOVE CIRCUMST ANCES, THE ASSESSEE DID NOT COMPLY WITH THE NOTICES ISSUED BY CIT(A). IN OUR VI EW, THERE WERE SUFFICIENT REASONS WHICH PREVENTED THE ASSESSEE FROM COMPLYING WITH THE NOTICES ISSUED BY THE CIT(A). AT THE SAME TIME IT IS WELL SETTLED LA W THAT RIGHT OF APPEAL WHEREVER CONFERRED INCLUDES A RIGHT OF BEING AFFORDED AN OPP ORTUNITY OF BEING HEARD, IRRESPECTIVE OF THE LANGUAGE CONFERRING SUCH RIGHT. THAT IS A PART AND PARCEL OF THE PRINCIPLE OF NATURAL JUSTICE. IT IS ALSO TRITE LAW THAT WHERE AN AUTHORITY IS REQUIRED TO ACT IN A QUASI JUDICIAL CAPACITY, IT IS IMPERATIVE TO GIVE ASSESSEE / APPELLANT AN ADEQUATE OPPORTUNITY OF BEING HEARD B EFORE DECIDING THE APPEAL. TAKING INTO CONSIDERATION THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, WE SET ASIDE THE ORDER OF CIT(A) IN TOTO AND REMAND TH E MATTER TO CIT(A) WITH A DIRECTION TO DECIDE THE APPEAL OF THE ASSESSEE AFR ESH IN ACCORDANCE WITH LAW AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. NO COMMENTS ARE BEING GIVEN ON THE MERITS OF THE CA SE AS THE SAME IS NOT REQUIRED AT THIS JUNCTURE. 11. FOR STATISTICAL PURPOSES, THE APPEAL IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 03.011.2015 SD/- SD/- (RANO JAIN) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT DATED : 3 RD NOVEMBER, 2015 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR 6