Sh. Balwinder Singh, Kharar V. ITO, W-6(5), Mohali

ITA 905/CHANDI/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4123 (ITAT-CHANDIGARH)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 28-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDER KANTA SR DR
• Keywords: Opportunity of being heard; Principle of natural justice; Condonation of delay; Set aside
• Section: 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH SMC CHANDIGARH !', # BEFORE: SMT. DIVA SINGH, JUDICIAL MEMBER ./ ITA NO. 905/CHD/2018 / ASSESSMENT YEAR : 2011-12 SHRI BALWINDER SINGH, VILLAGE BHAGOMAJRA, PAKKI RURKI, TEHSIL-KHARAR. VS THE ITO, WARD 6(5), MOHALI. ./ PAN NO. : DAMPS4549P / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : SHRI TEJ MOHAN SINGH # ! ' / REVENUE BY : SMT. CHANDERKANTA, SR.DR $ % ! & / DATE OF HEARING : 24.01.2019 '()* ! & / DATE OF PRONOUNCEMENT : 13.03.2019 $%/ ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DT. 16/10/2017 OF LD. CIT(A)-2, CHANDIGARH PERTAINI NG TO ASSESSMENT YEAR 2011-12 ON THE FOLLOWING GROUNDS: 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS ERRED IN LAW IN DISMISSING THE APPEAL WITHOUT AFFORDING ANY OPPORTU NITY OF HEARING WHICH IS AGAINST THE PRINCIPALS OF NATURAL JUSTICE AND AS SU CH THE ORDER PASSED IS ILLEGAL, ARBITRARY AND UNJUSTIFIED. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS FURTHER ERRED IN UPHOLDING THE FRAMING OF ASSESSMENT RESORTING TO TH E PROVISIONS OF SECTION 144 WHICH IS ARBITRARY AND UNJUSTIFIED. 3. WITHOUT PREJUDICE TO THE ABOVE, THE LD. COMMISSIONE R OF INCOME TAX (APPEALS) HAS ERRED IN LAW AS WELL AS ON FACTS IN U PHOLDING THE ADDITION OF RS.46,46,000/- FOR DEPOSITS MADE IN THE BANK ACCOUN T WHICH IS ARBITRARY AND UNJUSTIFIED. 4. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TA X (APPEALS) IS ERRONEOUS, ARBITRARY, OPPOSED TO LAW AND FACTS OF T HE CASE AND IS, THUS, UNTENABLE. 2. HOWEVER BEFORE PROCEEDING TO ADDRESS THE ISSUE R AISED IN THE APPEAL THE LD. AR INVITED ATTENTION TO THE DELAY OF 170 DAYS POINTED OUT BY THE REGISTRY. ADDRESSING THE SAME IT WAS HIS SUBMISSION THAT THE DELAY HAS OCCURRED ON A CCOUNT OF THE FACT THAT THE ASSESSEE IS A CONSTABLE AND HIS SERVICES WERE TERMINATED IN 2006. THUS, OVER THE YEARS HE HAD BEEN RUNNING FROM PILLAR TO POST TO GET HIMSELF REINSTATED IN SE RVICE. REFERRING TO THE CONDONATION OF DELAY APPLICATION, IT WAS SUBMITTED THAT ONLY IN 2018 HE WAS REINSTATED BACK IN SERVICE. ATTENTION ITA 905/CHD/2018 A.Y. 2011-12 PAGE 2 OF 5 WAS INVITED TO THE COPY OF THE DISMISSAL AND SUBSEQ UENT REINSTATEMENT ORDER AVAILABLE IN THE PAPER BOOK, SPECIFIC PAGE 4 AND 8 OF THE PAPER BOOK WERE REFERRED TO. IT WAS HIS SUBMISSION THAT THE ASSESSEE WHO DURING THE TIME HE WAS IN SER VICE USED TO RESIDE WITH HIS WIDOW AUNT (MASSI) WHO WAS ILLITERATE AND WAS ABOUT 85 YEARS O LD LADY UNABLE TO UNDERSTAND THE NOTICES/ORDERS RECEIVED FAILED TO COMMUNICATE THE O RDER PASSED. AS THE ASSESSEE HAD NO MEANS OF EARNING AFTER THE DISMISSAL IN ORDER TO MA KE BOTH ENDS MEET AS HE HAD NO SOURCE OF INCOME THE ASSESSEE PERFORCE HAD TO SHIFT TO HIS AN CESTRAL VILLAGE MACCHIWARA DISTT. LUDHIANA WHERE HE WORKED AS AGRICULTURE LABOUR PURSUING AGRI CULTURAL ACTIVITY FOR SURVIVAL. IT WAS ONLY AFTER BEING REINSTATED WHEN HE VISITED HIS MASSI AN D WENT THROUGH THE DOCUMENTS RECEIVED AT HIS PLACE OF RESIDENCE WITH HIS MASSI, HE NOTICED T HE ORDER OF THE CIT(A) AND IMMEDIATELY THEREAFTER THE PRESENT APPEAL HAS BEEN FILED. 3. ACCORDINGLY IN VIEW OF THESE FACTS SUPPORTED BY THE AFFIDAVIT OF THE ASSESSEE IT WAS HIS PRAYER THAT THE ASSESSEE NOT BEING IN THE RIGHT FRA ME OF MIND AFTER HAVING BEEN DISMISSED FROM SERVICE, COUPLED WITH THE FACT THAT IN ORDER TO MAK E BOTH ENDS MEET HE HAD SHIFTED FROM HIS PLACE TO RESIDE AT ANCESTRAL VILLAGE NEAR LUDHIANA. ACCORDINGLY THE IMPORTANT LETTERS WERE NOT NOTICED AND COULD NOT BE ATTENDED TO. IN VIEW OF TH E CIRCUMSTANCES IT WAS HIS PRAYER THAT THE DELAY MAY BE CONDONED. 4. THE LD. SR. DR CONSIDERED THE FACTS SUBMITTED TH AT IT WAS THE DUTY OF THE ASSESSEE TO REMAIN ALERT IN REGARD TO THE RESPONSIBILITY QUA HI S TAX MATTERS. ACCORDINGLY IT WAS HER PRAYER THAT THE DELAY MAY NOT BE CONDONED. HOWEVER, THE DO CUMENTS AVAILABLE ON RECORD AND RELIED UPON I.E. THE FACTUM OF DISMISSAL AND REINSTATEMENT ETC WERE NOT REBUTTED. 5. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. THE RECORD SHOWS THAT THE ASSESSEE WAS DISMISSED FROM SERVICE. THE LETTER NO. 8/24/2017-1G5/6G3/735- 769 DT. 22/02/2018 RELIED UPON BY THE ASSESSEE TAKE S NOTE OF IN PARA 3 DELAY OF ABOUT A YEAR AS A RESULT OF ADDRESS NOT CORRECTLY NOTICED. THE FAC TUM OF INFORMATION RECEIVED AT AN INCORRECT ADDRESS AS A REASON FOR LACK OF AWARENESS AND CONSE QUENTLY FOR NOT BRINGING ON RECORD THE FACT THAT HE WAS EXONERATED TO THE KNOWLEDGE OF THE DEPA RTMENT OF HOME AFFAIRS AND LAW, PUNJAB GOVERNMENT. THE DELAYED INFORMATION OF A YEAR IN B RINGING THIS FACT TO THE NOTICE OF GOVERNMENT OF PUNJAB IS EVIDENT FROM PARA 3 OF THE SAME. ON PERUSAL OF THE PARA 4 OF THE AFORESAID LETTER, IT IS SEEN THAT THE ASSESSEE WAS DISMISSED FROM SERVICE BY AN ORDER OF THE COURT IN CASE NO. 69 DT. 04/03/2006 AND HE WAS FINA LLY ACQUITTED ON THE BENEFIT OF DOUBT AND HE WAS REAPPOINTED WITH NO BACK WAGES ON THE PRINCI PLE NO WORK NO PAY AND HIS DATE OF RESTORATION AS PER THE LETTER DT. 13/02/2018 IT WAS DIRECTED WOULD BE HELD FROM HIS DATE OF JOINING. FOR READY REFERENCE THE AFORESAID LETTER I S EXTRACTED HERE UNDER: IN CONTINUATION OF LETTER NO. 8/24/2017-1G5/6G3/735 -769 AND DATED 22.2.2018 GOVERNMENT OF PUNJAB DEPARTMENT OF HOME AFFAIRS AND LAW ( HOME-3 BRANCH) ITA 905/CHD/2018 A.Y. 2011-12 PAGE 3 OF 5 OFFICE ORDER SH. BALWINDER SINGH CONSTABLE HAS PRESENTED IN PERS ON FOR HEARING BALWINDER SINGH HAS TOLD THAT HIS NAME WAS ASSOCIAT ED WITH OTHER ACCUSED AND STOLEN VEHICLE AND FAKE DOCUMENTS WERE RECOVERE D FROM THEM , DUE TO THIS REASON HE WAS ALSO ARRESTED AND A CASE WAS REGISTER ED AT PS SECTOR 26 CHANDIGARH , DUE TO THAT HE WAS DISMISSED FROM THE JOB. HE TOLD THAT AS PER THE ORDER OF HON'BLE COURT HE HAS BEEN ACQUITTED FR OM ALL THE CHARGES, AND HE MAY BE REAPPOINTED ON HIS JOB. 3. APPLICANT HAS ORALLY EXPLAINED HIS PART DURING T HE HEARING. WHEN IT WAS ASKED TO HIM WHY THE APPEAL WAS MADE AFTER ONE YEAR OF DATE OF JUDGMENT I.E 20.9.2016. IN REPLY OF THAT HE TOLD THAT IN THE ORDER OF HON'BLE COURT HIS ADDRESS WAS WRONGLY MENTIONED, WHICH TAKE 4-5 MONTH S TO RECTIFY THE SAME (18.2.2017). OPERATIVE PART OF THE ORDER PASSED BY HON'BLE COURT OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE CHANDIGARH ON DATED 20.3. 2017 ARE AS UNDER:- ' AS A TOTALITY OF FOREGOING DISCUSSION AND FINDING , NO EVIDENCE HAS BEEN BROUGHT BY THE PROSECUTION ON THE FILE TO BRING THE ACCUSED WITHIN THE AMBIT OF CHARGES. HENCE, WHILE EXTENDING THE BE NEFIT OF DOUBT TO THE ACCUSED , HE IS ACQUITTED OF THE CHARGES FRAMED AGA INST HIM' 4. IT IS CLEAR FROM THE ABOVE MENTIONED THAT THE AP PLICANT WAS DISMISSED DUE TO CHARGES IMPOSED AGAINST HIM IN CASE NO. 69 D ATED 4.3.2006, AS PER THE ORDER MENTIONED ABOVE APPLICANT IS ACQUITTED , BUT THE HON'BLE COURT HAS NOT ACQUITTED BALWINDER SINGH, BUT HE HAS BEEN ACQUITTE D FROM CHARGES ON THE BASIS OF BENEFIT OF DOUBT' , AS HE HAS BEEN ACQUITT ED FROM CHARGES SO TO REAPPOINT HIM ON HIS JOB PRINCIPLE OF NO WORK NO PA Y WILL BE APPLICABLE AS PER THE JUDGMENT GIVEN IN DIFFERENT CASES BY THE HON'BL E SUPREME COURT. EX. CONSTABLE BALWINDER SINGH 82/304 IS PERMITTED TO RE SUME HIS SERVICES. NO BENEFIT WILL BE GIVEN FROM THE DATE OF DISMISSAL 16 .3.2006 TO DATE OF REJOINING ON THE BASIS OF PRINCIPLE OF 'NO WORK NO PAY. HIS RESTORATION WILL BE ASSUMED FROM THE DATE OF JOINING. DATED, CHANDIGARH DR NIRMALJIT SINGH KALSI , IAS 13.2.2018 ADDITIONAL CHIEF SECRETARY , GOVT OF PUNJAB HOME AFFAIRS , DEPTT OF LAW AND JAIL ENDORSEMENT NO 8/24/2017- 1G5/6G3/735/1287 DATED : CHD 23.3.2018 A COPY OF THE SAME IS BEING SENT TO DIRECTOR GENERA L OF POLICE , PUNJAB IN REFERENCE OF THEIR LETTER NO. 12150/E-2(2) DATED 1 7.7.2017 FOR INFORMATION AND FURTHER NECESSARY ACTION AND INFORMED THAT APPELLAN T MAY KINDLY BE INFORMED ABOUT THE ABOVE MENTIONED ORDERS. SD/- BY SUPERINTENDENT ENDORSEMENT NO. 8/24/2017 1G5/6G3/735/1287 DATED CHANDIGARH A COPY OF THE SAME IS SENT TO EX CONSTABLE BALWINDE R SINGH 304 82 ND BN CHANDIGARH FOR INFORMATION AND FURTHER NECESSARY ACTION. SD/ BY SUPERINTENDENT OFFICE OF DIRECTOR GENERAL OF POLICE, PUNJAB, CHAND IGARH NO. 4990-91/E-2(2) DATED CHANDIGARH 28.02.2018 (1) A COPY OF THE SAME IS SENT TO ADDITIONAL DGP / ARME D PNJ JALANDHAR CANTT TO INFORM THE EX CONSTABLE BALWINDER SINGH ABOUT THE A BOVE MENTIONED ORDERS AND ACKNOWLEDGEMENT RECEIPT OF THE SAME MAY BE SENT TO THIS OFFICE. (2) COMMANDANT 82 ND BN PAP CHANDIGARH OFFICE OF DEPUTY INSPECTOR GENERAL , POLICE PAP -2 AND TRAINING PUNJAB CHANDIGARH ITA 905/CHD/2018 A.Y. 2011-12 PAGE 4 OF 5 NO; 601 /A-3 DATED 4-4-2018 COPY OF THE PREVIOUS PAGE IS BEING SENT TO COMMANDA NT 82 ND BN CHANDIGARH AND INSTRUCTED THAT THAT COPY OF THE ORD ERS MAY DELIVER TO EX CONSTABLE BALWINDER SINGH 82/304 AT THEIR OWN LEVEL AND ACKNOWLEDGEMENT OF THE SAME MAY SEND TO THIS OFFICE. ENCLOSED : COPY OF ORDERS SD/- BY GURMEET SINGH SUPTT FOR DIG, PAP-2 AND TRAINING CENTRE, CHANDIGARH 5.1 IT IS FURTHER SEEN FROM PAPER BOOK PAGE 8 THAT THE ASSESSEE REJOINED THE SERVICE ON 04/04/2018 AT 12 OCLOCK. ACCORDINGLY CONSIDERING THE OVERALL FACTUAL MATRIX AS SET OUT HEREIN ABOVE I AM OF THE VIEW THAT THE EXPLANATION OF THE ASSESSEE FOR FILING THE APPEAL LATE BY 170 DAYS CAN BE ACCEPTED. THE OBJECTION OF THE LD. SR. DR HAVE BEEN TAKEN NOTE OF WHO HAS STATED THAT IT IS THE DUTY AND RESPONSIBILITY OF THE ASSES SEE TO REMAIN ALERT. AGREEING WITH SAID SUBMISSION AND HOLDING THAT IT IS THE DUTY OF THE P ERSON TO STAY ALERT AND ALIVE TO HIS INTERESTS WHICH INCLUDE FILING OF APPEALS ETC. WITHIN THE STA TUTORY TIME LIMITS I FIND THAT IN THE PECULIAR FACTS OF THE PRESENT CASE WHERE THE ASSESSEE IS BAT TLING FOR HIS PHYSICAL EXISTENCE AND PERFORCE NEEDED TO SHIFT HIS RESIDENCE IN ORDER TO FIND MEAN S OF LIVELIHOOD ENGAGING IN AGRICULTURAL ACTIVITY IN HIS ANCESTRAL VILLAGE, THE LAPSES IN TH E PECULIAR FACTS CAN BE WELL UNDERSTOOD. ACCEPTING THE BONAFIDE EXPLANATION, THE DELAY IS CO NDONED. IT IS FURTHER SEEN THAT NO ADVANTAGE HAS BEEN DERIVED BY THE ASSESSEE BY FILIN G THE APPEAL LATE AND NO PREJUDICE IS CAUSED TO THE REVENUE AS NO VESTED RIGHT OF THE REV ENUE IS UPSET IN CASE THE DELAY IS CONDONED. SAID ORDER WAS PRONOUNCED IN THE COURT. A CCORDINGLY PARTIES WERE DIRECTED TO ARGUE THE APPEAL IN MERITS. 6. THE LD. AR INVITING ATTENTION TO GROUND NO. 1 AN D 2 RAISED BY THE ASSESSEE IN THE PRESENT APPEAL SUBMITTED THAT THE FACTS TAKEN NOTE BY THE LD. CIT(A) IN PARA 5 IN REGARD TO THE PRESENCE OF THE COUNSEL ARE CORRECT AS ON ONE OR TW O OCCASIONS HE PERSONALLY APPEARED ON BEHALF OF THE ASSESSEE HOWEVER IN THE ABSENCE OF RE LEVANT DOCUMENTS MADE AVAILABLE TO HIM THE TIME SOUGHT COULD NOT BE GAINFULLY UTILIZED BY MAKING COMPLIANCES. IT WAS SUBMITTED THAT THE ASSESSEE REMAINED BUSY IN TRYING TO GET HIMSELF REINSTATED. THE APPEAL ULTIMATELY WAS DISMISSED WITH THE OBSERVATIONS THAT THE ASSESSEE M AY NOT BE INTERESTED TO PURSUE THE APPEAL. ACCORDINGLY IT WAS HIS SUBMISSION THAT THE ASSESSEE IS INTERESTED IN PURSUING THE APPEAL FILED. IN THE PECULIAR FACTS AND CIRCUMSTANCES AS ARGUED A BOVE, IT WAS HIS SUBMISSION THAT HE WOULD BE REQUESTING FOR A REMAND TO THE AO. IN THE FACTS OF THE PRESENT CASE, IT WAS SUBMITTED THAT THE REMAND MAY NOT BE MADE TO THE LD. CIT(A) AS THE ASSESSEE WOULD NEED TO FILE AND INFACT IS FILING AN APPLICATION FOR ADMISSION OF FRESH EVIDEN CE WHICH CONSISTS OF THE AGREEMENT TO SELL WHICH WAS BEING RELIED UPON ALONGWITH COPIES OF THE BANK CHEQUE ETC. WHICH THE ASSESSEE HAS NOW MANAGED TO OBTAIN FROM THE BANK TO SHOW THAT TH ERE WERE SELF WITHDRAWALS AND RE- ITA 905/CHD/2018 A.Y. 2011-12 PAGE 5 OF 5 DEPOSITS AND IT IS THESE EVIDENCES WHICH WOULD BE R ELIED UPON IN THE EXPLANATION OFFERED BY THE ASSESSEE FOR EXPLAINING THE DEPOSITS IN HIS ACC OUNT. THE AO WILL NEED TO VERIFY THEM. 6.1 INVITING ATTENTION TO THE ASSESSMENT ORDER DT. 03/03/2014 PASSED UNDER SECTION 144 OF THE ACT, IT WAS HIS SUBMISSION THAT HEREIN ALSO THE ASSESSEE REMAINED UN-REPRESENTED ON ACCOUNT OF IDENTICAL REASONS I.E DISMISSAL FROM HIS JOB. IN THESE CIRCUMSTANCES, IT WAS HIS SUBMISSION THAT THE EVIDENCE COULD NOT BE PLACED BE FORE THE AO ALSO. THUS, SINCE THE FRESH EVIDENCE IS TO BE CONSIDERED WHICH IS RELEVANT AND CRUCIAL FOR DETERMINING THE ISSUE THE EVIDENCE WILL NEED TO BE CONSIDERED BY THE AO. ACC ORDINGLY, IN VIEW OF THESE REASONS, IT WAS HIS PRAYER THAT THE ISSUE MAY BE REMANDED TO THE AO . 7. LD. SR. DR CONSIDERING THE ORDER DT. 03/03/2014 PASSED UNDER SECTION 144 OF THE ACT BY THE AO AND THE IMPUGNED ORDER SUBMITTED THAT SIN CE IT IS THE AO WHO WILL NEED TO CARRY OUT NECESSARY ENQUIRY THE MATTER MAY BE REMANDED TO THE AO. 8. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. ON A CONSIDERATION OF THE SAME I FIND THAT THE FRESH EVI DENCE SOUGHT TO BE PLACED ON RECORD BY THE ASSESSEE TO EXPLAIN THE DEPOSITS IN THE SPECIFIC BA NK ACCOUNTS AT KHARAR WHICH CONSISTS OF COPY OF AGREEMENT OF SELL BETWEEN THE ASSESSEE AND SH. I NDERJEET SINGH ALONGWITH ITS ENGLISH TRANSLATION, COPY OF CHEQUE ALLEGEDLY DEMONSTRATING SELF WITHDRAWAL, COPY OF BANK STATEMENT AND COPY OF LAND REVENUE RECORDS RELIED UPON TO DEM ONSTRATE THE OWNERSHIP OF LAND ARE ALL RELEVANT DOCUMENTS WHICH WILL NEED TO BE CONSIDERED WHILE DETERMINING THE CORRECTNESS OF THE EXPLANATION OF THE ASSESSEE. IT IS SEEN THAT THE A SSESSEES SERVICES WERE TERMINATED IN 2006 AND HE WAS FINALLY RE-INSTATED IN APRIL,2018. THE ASSES SMENT ORDER U/S 144 IS PASSED ON 03.03.2014 AND THE IMPUGNED ORDER IS DATED 16.10.20 17. ACCORDINGLY, CONSIDERING THE FACTS WITHOUT COMMENTING UPON THE CORRECTNESS AND THE SUF FICIENCY OF THE FRESH EVIDENCES, THESE ARE ADMITTED AND IN TERMS OF THE PRAYER OF THE PARTIES BEFORE THE BENCH AND IN THE INTERESTS OF SUBSTANTIAL JUSTICE THE IMPUGNED ORDER IS SET ASIDE BACK TO THE FILE OF THE AO WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFT ER AFFORDING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13.03.2019. SD/- ( !' ) (DIVA SINGH) # / JUDICIAL MEMBER AG/POONAM ' ( (+ ! ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT -3. $ / / CIT4. $ / ( )/ THE CIT(A) 5. -01 2 , & 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7% / GUARD FILE (+ $ / BY ORDER, 8 # / ASSISTANT REGISTRAR