Smt. Narinder Kaur, Chandigarh V. ITO, Chandigarh

ITA 913/CHANDI/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8499 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 21-03-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 22-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Unexplained investment; Opportunity of being heard; Principle of natural justice; Right to appeal
• Section: 143(3); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, SMC, CHANDIGARH BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT ITA NO. 913/CHD/2015 ASSESSMENT YEAR: 2006-07 SMT.NARINDER KAUR, VS. THE ITO, WARD-1(2), C/O M/S LOIL CONTINENTAL FOODS LTD., CHANDIGARH CHANDIGARH PAN NO. ADGPK5909B (APPELLANT) (RESPONDENT) APPELLANT BY : SH. SUDHIR SEHGAL RESPONDENT BY : SH. S.K. MITTAL DATE OF HEARING : 08.02.2016 DATE OF PRONOUNCEMENT : 08.02.2016 ORDER PER H.L.KARWA, VP THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF CIT(A)- 3, GURGAON DATED 21.09.2015 RELATING TO ASSESSMENT YEAR 2006-07. 2. AT THE VERY OUTSET, LD. COUNSEL FOR THE ASSESSEE SHRI SUDHIR SEHGAL SUBMITTED THAT ASSESSEE WAS NOT PROVIDED ADEQUATE O PPORTUNITY OF BEING HEARD BY THE LD. CIT(A). FURTHER, IT IS SUBMITTED THAT IN TH IS CASE, THE ASSESSING OFFICER FRAMED THE ASSESSMENT ORDER U/S 143(3) OF THE ACT O N 29.12.2008. IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER MADE CERTAI N ADDITIONS / DISALLOWANCES. THE ASSESSEE CHALLENGED THE ORDER OF THE ASSESSING OFFICER BY WAY OF AN APPEAL BEFORE THE CIT(A). THE LD. CIT(A) DISMISSED THE AP PEAL OF THE ASSESSEE BY 2 PASSING AN EX-PARTE ORDER DATED 21.09.2015. THE REL EVANT OBSERVATIONS OF THE CIT(A) ARE AS UNDER:- 5. DECISION: - NOTICE U/S 250 WAS ISSUED TO APPELLANT FIXING THE C ASE FOR 24.04.2012, 29.05.2015 AND 07.08.2015 RESPECTIVELY. HOWEVER, THERE WAS NO RESPONSE WHATSOEVER, APART FROM SEEKIN G ADJOURNMENTS IN FIRST THREE HEARINGS FIXED AND NOBO DY APPEARED IN RESPONSE TO THE LAST NOTICE ISSUED. THE AFORESAID CIRCUMSTANCE SHOWS THAT THE APPELLANT IS NOT INTERESTED TO PURSUE HIS APPEAL. IN THE ABSENCE OF ANY REPLY FROM THE APPELLANT, THE MATTER IS BEING DECIDED EX-PARTE . THE MAXIM VIGILLANTIBUS NO-DERMINENTIBUS JURA SUBVENUNT' I.E. THE LAW ASSIST THOSE WHO ARE VIGILANT AND NOT THOSE WHO SLEEP OVER THEIR RIGHTS' IS APPLICABLE IN THIS CASE. HON'BLE ITAT IN ITA NO. 1025-1027/CHANDIGARH/2005 F OR THE AY 2002-03 IN THE CASE OF M/S CHHABRA LAND AND HOUSING LTD. AFTER FOLLOWING THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF B.N, BHATTACHARGEE & OTHER 118 ITR 461[SC] HELD THA T THE APPEAL DOES NOT MEAN MERELY FILLING OF THE APPEAL B UT EFFECTIVELY PURSUING THE SAME. KEEPING IN VIEW THE AFORESAID FACTUAL POSITION, THE APPEAL FILED BY THE APPELLANT IS THEREFORE DECIDED ON MERITS. 1 HAVE CONSIDERED THE ASSESSMENT ORDER IN THIS CASE . THE FOLLOWING OBSERVATIONS ARE MADE IN THIS CASE:- [I] THE A.O HAS MADE AN ADDITION OF RS. 11,76,400/- BEING UNEXPLAINED INVESTMENT IN LAND U/S 69 OF THE ACT, A S THE APPELLANT WAS NOT ABLE TO EXPLAIN THE SOURCE OF THE SE CASH INVESTMENTS DURING ASSESSMENT PROCEEDINGS. AS NO EXPLANATION REGARDING THE SAME HAS BEEN FILED DURIN G THE APPELLATE PROCEEDINGS, THE ADDITION MADE BY THE A.O IS CONFIRMED. (IIJ FURTHER, THE APPELLANT HAD RECEIVED AN AMOUNT OF RS. 50.000/- FROM M/S GANESHAY OVERSEAS LTD. WITHOUT IN TEREST 3 DURING THE YEAR. THE A.O HAS ADDED THE SAME U/S 56( 2] AS INCOME FROM OTHER SOURCES. (III) THE A.O HAS NOT EXPLAINED THE REASON FOR TREA TING THIS TRANSACTION/ RECEIPT AS 'INCOME FROM OTHER SOURCES' EXCEPT STATING THAT THIS AMOUNT, IS RECEIVED WITHOUT PAYIN G ANY INTEREST DURING THE YEAR. INTEREST IS PAYABLE ONLY ON LOANS AND THE LOAN TAKEN CANNOT BE TREATED AS 'INCOME FRO M OTHER SOURCES' IN VIEW OF THE SAME, THIS ADDITION MADE BY THE A.O HAS NO BASIS AND HENCE DELETED. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS, I AM O F THE CONSIDERED OPINION THAT LD. CIT(A) HAS NOT AFFORDED AN ADEQUATE OPPORT UNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE APPEAL OF THE ASSESSE E FILED BEFORE HIM. IN THE CASE OF RADHIKA CHARAN BANERJEE V SAMBALPUR MUNICIP ALITY, AIR 1979 ORI 69, WHEREIN THE HON'BLE ORISSA HIGH COURT HELD THAT A RIGHT OF APPEAL WHEREVER CONFERRED INCLUDES A RIGHT OF BEING AFFORDED AN OPPORTUNITY OF BEING HEARD, IRRESPECTIVE OF THE LANGUAGE CONFERRIN G SUCH RIGHT. THAT IS A PART AND PARCEL OF THE PRINCIPLE OF NATURAL JUSTICE. WHE RE AN AUTHORITY IS REQUIRED TO ACT IN A QUASI-JUDICIAL CAPACITY, IT IS IMPERATIVE TO GIVE THE APPELLANT AN ADEQUATE OPPORTUNITY OF BEING HEARD BEFORE DECIDING THE APPEAL. OPPORTUNITY OF HEARING DOES NOT ALWAYS NECESSARILY MEAN GIVING A P ERSONAL HEARING. A WRITTEN REPRESENTATION, IF COMPLETE AND ELABORATE IN ALL RE SPECTS FULLY EXPLAINING THE POINTS OF VIEW OF THE APPELLANT, WHEN ACCEPTED MAY, IN SOME CASES, AMOUNT TO AFFORDING OPPORTUNITY OF HEARING. WHAT PARTICULAR R ULE OF NATURAL JUSTICE SHOULD APPLY TO A GIVEN CASE MUST ALSO DEPEND TO A GREAT E XTENT ON THE FACTS AND CIRCUMSTANCES OF THAT CASE. IN THAT VIEW OF THE MATTER, IT WAS HELD THAT WHERE NO EFFECTIVE OPPORTUNITY OF BEING HEARD WAS GIVEN TO THE APPELLANT IN DISPOSING OF HIS APPEAL INSPITE OF HIS EXPRESS REQUEST THAT H IS COUNSEL SHOULD BE HEARD, THE ORDER MUST BE QUASHED. 4 4. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUM STANCES OF THE PRESENT CASE, AND ALSO THE SETTLED LEGAL POSITION, I THINK IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER IN TOTO AND REMAND THE MATTER TO THE LEARNED CIT (APPEALS) WITH THE DIRECTION TO DECIDE THE APPE AL OF THE ASSESSEE AFRESH IN ACCORDANCE WITH LAW AFTER AFFORDING DUE A ND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LE ARNED CIT (APPEALS) IS DIRECTED TO DECIDE THE APPEAL OF THE ASSESSEE P REFERABLY WITHIN FOUR MONTHS FROM THE DATE OF RECEIPT OF COPY OF THIS ORD ER. 5. AT THIS STAGE, I AM NOT OFFERING ANY COMMENTS ON THE MERITS OF THE CASE. 6. FOR STATISTICAL PURPOSES, THE APPEAL OF THE ASSE SSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 08.02.2016 SD/- (H.L.KARWA) VICE PRESIDENT DATED : 8 TH FEBRUARY, 2016 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR 5