Sh. Balwinder Singh, Kharar V. ITO, W-6(4), Mohali

ITA 906/CHANDI/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0918 (ITAT-CHANDIGARH)
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 28-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDER KANTA SR DR
• Keywords: Principle of natural justice; Condonation of delay; Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH SMC CHANDIGARH !', # BEFORE: SMT. DIVA SINGH, JUDICIAL MEMBER ./ ITA NO. 906/CHD/2018 / ASSESSMENT YEAR : 2012-13 SHRI BALWINDER SINGH, VILLAGE BHAGOMAJRA, PAKKI RURKI, TEHSIL-KHARAR. VS THE ITO, WARD 6(4), 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 : 25.03.2019 $%/ ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSA ILING THE CORRECTNESS OF THE ORDER DT. 31/10/2017 OF CIT(A)-2, CHA NDIGARH PERTAINING TO 2011-12 A.Y. ON THE FOLLOWING GROUNDS: 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS ERRED IN LAW IN DISMISSING THE APPEAL ON SUMMARY BASIS WITHOUT AFFORDING ANY OPPOR TUNITY OF HEARING WHICH IS AGAINST THE PRINCIPALS OF NATURAL JUSTICE AND AS SUCH THE O RDER PASSED IS ILLEGAL, ARBITRARY AND UNJUSTIFIED. 2. WITHOUT PREJUDICE TO THE ABOVE, THE LD. COMMISSIONE R OF INCOME TAX (APPEALS) HAS ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDING THE ADDITIO N OF RS. 9,16,000/- ON ACCOUNT OF ADVANCES RECEIVED AGAINST LAND WHICH IS ARBITRARY A ND UNJUSTIFIED. 3. THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TA X(APPEALS) IS ERRONEOUS, ARBITRARY, OPPOSED TO LAW AND FACTS OF THE CASE AND IS, THUS, UNTENABLE. 2. THE LD. AR SUBMITTED THAT THE ASSESSEE HAD BEEN DISM ISSED FROM SERVICE IN 2006 AND HAD BEEN RUNNING FROM PILLAR TO POST TO GET HIMSELF RE- INSTATED. ACCORDINGLY, THERE IS A DELAY OF 170 DAYS IN FILING OF THE PRESENT APPEAL. REFERRING TO THE CONDONATION OF DELAY APPLICATION AN D RELYING ON THE ARGUMENTS ADVANCED IN ITA 905/CHD/2018 WHEREIN ON SIMILA R FACTS, THE DELAY OF 170 DAYS POINTED OUT BY THE REGISTRY HAS BEEN CONDONED, HE MADE A SIMILAR PRAYER FOR CONDONATION OF DELAY. THE LD. SR.DR ALSO S UBMITTED THAT FACTS AND CIRCUMSTANCES FOR THE DELAY IN THE PRESENT AP PEAL ARE IDENTICAL TO ITA 906/CHD/2018 A.Y. 2012-13 PAGE 2 OF 5 THE FACTS AS AVAILABLE IN ITA 905/CHD/2018, ACCORDINGLY, HE R ARGUMENTS WOULD ALSO REMAIN IDENTICAL. 2.1 NOTING THE COMMON STAND OF THE PARTIES BEFORE THE B ENCH WHEREIN THE PRAYER OF CONDONATION OF DELAY IS MADE ON IDENTICAL FACTS A S IN ITA 905/CHD/2018 AND THE DEPARTMENTAL OBJECTIONS ALSO REM AIN IDENTICAL, ACCORDINGLY RELYING ON THE DETAILED REASONS AS SET OUT IN ITA NO. 905/CHD/2018, THE DELAY HEREIN ALSO FOR SIMILAR REASONS IS CONDONED. IN THE FACTS OF THE PRESENT CASE ALSO IT IS SEEN THAT THE A SSESSEE HAS DEMONSTRATED THAT HE WAS DISMISSED FROM THE SERVICES OF CONSTABLE IN PUNJAB POLICE AND REMAINED JOBLESS AND SHIFTED FROM KHARAR TO MACCHIWARA DISTT. LUDHIANA AND ONLY AFTER BEING REINSTATED IN APRIL, 20 18 HE COULD ATTEND TO THE MAIL AND OTHER NOTICES RECEIVED IN HIS ABS ENCE BY HIS WIDOWED MASSI (MOTHERS SISTER) AND HENCE THE DELAY IN FILING OF THE PRESENT APPEAL. THE BONAFIDE EXPLANATION OF THE ASSESSEE IS NOT SHOWN TO BE INCORRECT ON FACTS. TAKING NOTE OF THE FACT THAT NO ADVANTAGE HAS BE EN DERIVED BY THE ASSESSEE BY THE LATE FILING OF THE PRESENT APPEAL. SIMILARLY N O DISADVANTAGE HAS BEEN VISITED UPON THE REVENUE IN CASE THE DELAY IS C ONDONED AND THE ISSUES ARE SETTLED ON MERITS. ACCORDINGLY SATISFIED WITH THE BONAFIDE EXPLANATION OFFERED AS IN ITA NO. 905/CHD/2018 THE DELAY IS CONDONED. FOR READY REFERENCE, THE RELEVANT EXTRACT FROM THE AFORESAID ORDER IS REPRODUCED HEREUNDER : 5. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MA TERIAL AVAILABLE ON RECORD. THE RECORD SHOWS THAT THE ASSESSEE WAS DISMISSED FROM S ERVICE. THE LETTER NO. 8/24/2017- 1G5/6G3/735-769 DT. 22/02/2018 RELIED UPON BY THE A SSESSEE TAKES NOTE OF IN PARA 3 DELAY OF ABOUT A YEAR AS A RESULT OF ADDRESS NOT CORRECTL Y NOTICED. THE FACTUM OF INFORMATION RECEIVED AT AN INCORRECT ADDRESS AS A REASON FOR LA CK OF AWARENESS AND CONSEQUENTLY FOR NOT BRINGING ON RECORD THE FACT THAT HE WAS EXONERA TED TO THE KNOWLEDGE OF THE DEPARTMENT OF HOME AFFAIRS AND LAW, PUNJAB GOVERNME NT. THE DELAYED INFORMATION OF A YEAR IN BRINGING THIS FACT TO THE NOTICE OF GOVERNM ENT 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 FINALLY ACQUITTED ON THE BENEFIT OF DOUBT AND HE WAS REAPPOINTED WITH NO BACK WAGES ON THE PRINCIPLE NO WORK NO PAY AND HIS DATE OF RESTOR ATION 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 IS 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) 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 RECOVERED FR OM 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 ITA 906/CHD/2018 A.Y. 2012-13 PAGE 3 OF 5 ORDER OF HON'BLE COURT HE HAS BEEN ACQUITTED FROM A LL 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 ORD ER OF HON'BLE COURT HIS ADDRESS WAS WRONGLY MENTIONED, WHICH TAKE 4-5 MONTHS TO REC TIFY 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 UND ER:- ' 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 BENEFI T OF DOUBT TO THE ACCUSED , HE IS ACQUITTED OF THE CHARGES FRAMED AGAINST 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 ACQUITTED FRO M CHARGES SO TO REAPPOINT HIM ON HIS JOB PRINCIPLE OF NO WORK NO PAY WILL BE APPL ICABLE AS PER THE JUDGMENT GIVEN IN DIFFERENT CASES BY THE HON'BLE SUPREME COU RT. EX. CONSTABLE BALWINDER SINGH 82/304 IS PERMITTED TO RESUME HIS SERVICES. N O BENEFIT WILL BE GIVEN FROM THE DATE OF DISMISSAL 16.3.2006 TO DATE OF REJOININ G ON THE BASIS OF PRINCIPLE OF 'NO WORK NO PAY. HIS RESTORATION WILL BE ASSUMED F ROM 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 17.7.2017 F OR INFORMATION AND FURTHER NECESSARY ACTION AND INFORMED THAT APPELLANT MAY KI NDLY BE INFORMED ABOUT THE ABOVE MENTIONED ORDERS. SD/ - BY SUPERINTENDENT ENDORSEMENT NO. 8/24/20 17 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 AC TION. 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 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 ITA 906/CHD/2018 A.Y. 2012-13 PAGE 4 OF 5 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 CONSIDERI NG THE OVERALL FACTUAL MATRIX AS SET OUT HEREIN ABOVE I AM OF THE VIEW THAT THE EXPLANAT ION 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 RESPONSIBILI TY OF THE ASSESSEE TO REMAIN ALERT. AGREEING WITH SAID SUBMISSION AND HOLDING THAT IT I S THE DUTY OF THE PERSON TO STAY ALERT AND ALIVE TO HIS INTERESTS WHICH INCLUDE FILING OF APPEALS ETC. WITHIN THE STATUTORY TIME LIMITS I FIND THAT IN THE PECULIAR FACTS OF THE PRE SENT CASE WHERE THE ASSESSEE IS BATTLING FOR HIS PHYSICAL EXISTENCE AND PERFORCE NEEDED TO SHIFT HIS RESIDENCE IN ORDER TO FIND MEANS OF LIVELIHOOD ENGAGING IN AGRICULTURAL ACTIVITY IN HIS ANCESTRAL VILLAGE, THE LAPSES IN THE PECULIAR FACTS CAN BE WELL UNDERSTOOD. ACCEPTING T HE BONAFIDE EXPLANATION, THE DELAY IS CONDONED. IT IS FURTHER SEEN THAT NO ADVANTAGE HAS BEEN DERIVED BY THE ASSESSEE BY FILING THE APPEAL LATE AND NO PREJUDICE IS CAUSED TO THE R EVENUE AS NO VESTED RIGHT OF THE REVENUE IS UPSET IN CASE THE DELAY IS CONDONED. SAI D ORDER WAS PRONOUNCED IN THE COURT. ACCORDINGLY PARTIES WERE DIRECTED TO ARGUE THE APPE AL IN MERITS. 2.2 SAID ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE PARTIES. ACCORDINGLY, THEY WERE DIRECTED TO ARGUE THE APPEAL ON ME RITS. 3. THE RECORD SHOWS THAT IN THE FACTS OF THE PRESENT C ASE ALSO, ADMITTEDLY THE APPEAL OF THE ASSESSEE WAS DISMISSED IN LIMINE FOR THE R EASON THAT ON THE SPECIFIC DATE OF HEARING, THE ASSESSEE DID NOT PARTICIPATE B EFORE THE CIT(A). DRAWING A DISTINCTION FROM THE EARLIER APPEAL, THE LD. AR SUBMITTED THAT IN A LL FAIRNESS THE ASSESSEE HAS PARTICIPATED BEFORE AO AS THE ASSESSEE'S WIDOWED AUNT DID COMMUNICATE SOME LETTERS AND NOTICES AT TIMES A ND THE ASSESSEE HAS PARTICIPATED CONSEQUENTLY BEFORE THE AO WHO PASSED AN ORDER U/S 143(3). THE SAID ORDER WAS CHALLENGED BEFORE THE CIT(A) A ND AS A RESULT OF LACK OF COMMUNICATION, THE ASSESSEE COULD NOT PARTICIPATE BEFORE THE CIT(A). ACCORDINGLY, IN VIEW OF THIS FACTUAL POSITION HE REQUESTED FOR A REMAND TO THE FILE OF THE LD. CIT(A) WHERE THE ASSESSEE FOR THE REASONS AS ARGUED IN ITA 905/CHD/2018 COULD NOT PARTICIPATE DUE TO LACK OF NOTICE. 4. CONSIDERING THE FACT THE LD. SR. DR HAD NO OBJECTION TO THE REMAND TO THE LD. CIT(A). 5. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MATERIA L AVAILABLE ON RECORD. IT IS SEEN THAT IN THE PROCEEDINGS BEFORE THE LD . CIT(A) THE ASSESSEE REMAINED UN-REPRESENTED FOR REASONS BEYOND ITS CONTROL NAMELY SHIFTING TO HIS ANCESTRAL VILLAGE FOR EEKING OUT A LIVING AND NOTICE ETC. S ENT TO HIM AT HIS ADDRESS WHERE HE RESIDED WITH HIS WIDOWED AUNT REMAINING UNATTENDED TO. THUS, CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES AN D IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH AS WELL AS IN THE INTERESTS OF SUBSTANTIAL JUSTICE THE IMPUGNED ORDER IS SET ASIDE BACK TO THE FILE OF LD.CIT(A) WITH DIRECTION TO PASS A SPEAKING ORDER IN ACCORD ANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEIN G HEARD. WHILE SO DIRECTING IT IS MADE CLEAR THAT IN THE EVENTUALITY OF ABUSE OF THE TRUST ITA 906/CHD/2018 A.Y. 2012-13 PAGE 5 OF 5 REPOSED, THE LD. CIT(A) WOULD BE AT LIBERTY TO PASS AN ORD ER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. ACCORDINGLY THE ASSESSEE IN I TS OWN INTERESTS SHOULD PARTICIPATE FULLY AND FAIRLY IN THE PROCEEDING BEFORE THE LD. CIT(A). SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING IT SELF. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25.03.2019. SD/- ( !' ) (DIVA SINGH) # / JUDICIAL MEMBER AG/POONAM ' ( (+ ! ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. $ / / CIT 4. $ / ( )/ THE CIT(A) 5. -01 2 , & 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7% / GUARD FILE (+ $ / BY ORDER, 8 # / ASSISTANT REGISTRAR