Sh. Harjinder Singh, Chandigarh V. ITO, W-4(1), Chandigarh

ITA 995/CHANDI/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6521 (ITAT-CHANDIGARH)
• Duration Of Justice: 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 20-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDRA KANTA
• Keywords: Gift; Condonation of delay; Set aside
• Section: 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, SMC, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER ITA NO.995/CHD/2018 ASSESSMENT YEAR: 2008-09 SH. HARJINDER SINGH VS. THE ITO, C/O PARIKSHIT AGGARWAL, W-4(1), C.A, H.NO. 1238, SECTOR-22B CHANDIGARH CHANDIGARH PAN NO. ATUPS7823C (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. PARIKSHIT AGGARWAL REVENUE BY : SMT. CHANDRAKANTA DATE OF HEARING : 24/01/2019 DATE OF PRONOUNCEMENT : 26/02/2019 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DT. 10/04/2018 OF LD. CIT(A)-2, CHANDIGA RH PERTAINING TO 2008-09 ASSESSMENT YEAR ON VARIOUS GROUNDS. 2. HOWEVER BEFORE ADDRESSING THE GROUNDS IT IS APPR OPRIATE TO ADDRESS THE DELAY OF 17 DAYS POINTED OUT BY THE REGISTRY. THE LD. AR ADD RESSING THE SAME RELIED UPON THE CONDONATION OF DELAY APPLICATION SUPPORTED BY AN AF FIDAVIT FILED ON BEHALF OF THE ASSESSEE. REFERRING TO THE SAME IT WAS SUBMITTED TH AT THE ORDER HAD BEEN SENT BY THE CIT(A) AT THE CORRECT ADDRESS. THE ASSESSEE THEN HA D BEEN RESIDING IN PEHOWA AND HAD HANDED OVER THE PAPERS OF HIS BROTHER RESIDING AT C HANDIGARH TO FILE THE APPEAL. THE ASSESSEE IT WAS SUBMITTED ON AND OFF CAME TO CHANDI GARH FOR HIS BUSINESS. SINCE THE BROTHER DID NOT TAKE NECESSARY ACTION AS A RESULT O F THIS THERE IS A DELAY OF 17 DAYS. AFFIDAVIT OF THE ASSESSEE WAS RELIED UPON AND THE F ACTUM OF BOTH THE ADDRESS NOTED BY THE ASSESSING OFFICER AND THE LD. CIT(A) WERE REFER RED TO THE RELEVANT EXTRACT OF THE AFFIDAVIT WAS RELIED UPON AND IT WAS SUBMITTED THAT IN VIEW OF THE SPECIFIC PROBLEM THE ASSESSEE IN COLUMN NO. 10 IN THE MEMO OF APPEAL FIL ED BEFORE THE ITAT HAD FINALLY GIVEN THE ADDRESS OF THE COUNSEL. THE FOLLOWING FACTS WER E HIGHLIGHTED FROM THE AFFIDAVIT: 3. THAT AGAINST THE ORDER OF WORTHY CIT(A)-2 CHANDI GARH DATED 10/04/2018 SERVED ON 04/05/2018 , I FILED APPEAL BEFORE THE HONBLE I TAT ON 20/07/2018 WHICH IS LATE BY 16 DAYS. 4. THAT AS REGARDS THE REASON FOR THE DELAY IN FILI NG OF THE APPEAL WAS THAT I HAD SHIFTED FROM CHANDIGARH TO PEHOWA AT THE RELEVANT P OINT OF TIME. I HAD GIVEN THE ORDER OF WORTHY CIT(A) TO MY BROTHER SH. RASHPAL SI NGH FOR FILING APPEAL SINCE HE WAS RESIDING IN CHANDIGARH. BUT HE DID NOT TOOK SER IOUS EFFORTS AND WHEN I INQUIRED AND THEN GOT TO KNOW THAT THE APPEAL HAS NOT BEEN F ILED, I IMMEDIATELY CONTACTED THE COUNSEL ON MY OWN AND COMPLETED THE P ROCESS OF FILING OF APPEAL IN THE QUICKEST POSSIBLE TIME. ALL THESE FACTS LEAD TO DELAY OF 16 DAYS IN FILING OF APPEAL. THIS DELAY WAS GENUINE AND BONAFIDE. 2 5. THAT THE ABOVE DELAY IN FILING OF APPEAL DESERVE S TO BE CONDONED. I UNDERTAKE TO CO-OPERATE IN EARLY DISPOSAL OF THIS APPEAL. 3. THE LD. SR. DR CONSIDERING THE FACT AND HAD NO O BJECTION TO THE DELAY BEING CONDONED. 4. I HAVE HEARD THE RIVAL SUBMISSION AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFO RE THE BENCH AND CONSIDERING THE PECULIAR FACTS OF THE PRESENT CASE THE DELAY OF 17 DAYS POINTED BY THE REGISTRY IS CONDONED. 5. THE LD. AR INVITING ATTENTION TO THE GROUND RAIS ED SUBMITTED THAT IN GROUND NO. 1 TO 5 THE ASSESSEE HAS CHALLENGED THE REASSESSMENT P ROCEEDING AND IN THE PRESENT PROCEEDINGS HE HAS BEEN INSTRUCTED NOT TO PRESS THE SAID GROUNDS AND THE ONLY ISSUE BEING AGITATED NOW BY THE ASSESSEE IS ADDRESSED VID E GROUND NO. 6 AND 7 AND EVEN HERE THE ASSESSEE IS ONLY PRAYING FOR A REMAND. THE SPECIFIC GROUNDS READS AS UNDER: 6. THAT ON LAW, FACTS AND CIRCUMSTANCES OF THE CASE , THE WORTHY CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ACTION OF THE LD. ASSES SING OFFICER WHEREIN THE LD. ASSESSING OFFICER WHILE CARRYING OUT THE IMPUGNED R E-ASSESSMENT PROCEEDINGS AND ALSO WHILE FRAMING THE IMPUGNED ASSESSMENT, HAD ACTED WITH A BIASED AND PREJUDICE MIND AND HENCE THE SAID ASSESSMENT IS ILL EGAL AND UNJUSTIFIED. 7. THAT ON LAW, FACTS AND CIRCUMSTANCES OF THE CASE , THE WORTHY CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ACTION OF THE LD. ASSES SING OFFICER WHEREIN THE LD. ASSESSING OFFICER HAD ERRED IN MAKING ADDITION OF R S. 13,20,000/- ON ACCOUNT OF CAPITAL INTRODUCED BY THE APPELLANT IN FIRM VRRH BY ALLEGING THE SAME TO BE FROM UNEXPLAINED SOURCE EVEN WHEN THE MAJOR AMOUNT OF RS . 11,00,000/- WAS RECEIVED BY THE APPELLANT OUT OF HIS FATHERS AGRICULTURE IN COME AND REST AMOUNT OF RS. 2,20,000/- WAS FROM HIS PERSONAL SAVINGS, GIFTS FRO M RELATIVES AND CURRENT YEAR DECLARED INCOME AND HENCE THE INVESTMENT WAS FROM E XPLAINABLE SOURCES. 6. INVITING ATTENTION TO THE ORDER SHEET ENTRY DT. 23/01/2019 IT WAS HIS SUBMISSION THAT RELIANCE HAD BEEN PLACED UPON THE ORDER OF THE COOR DINATE BENCH IN THE CASE OF ASSESSEES BROTHER SHRI RASHPAL SINGH AND HE HAD MA DE A PRAYER FOR RESTORING THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER WITH IDENTICA L DIRECTIONS. THE SPECIFIC ORDER SHEET ENTRY DT. 23/01/2019 READS AS UNDER: 23/01/2019: LD. AR FILES A CONDONATION OF DELAY APP LICATION AND ON MERITS PRAYS FOR RESTORING THE MATTER TO ASSESSING OFFICER. COPY OF ORDER OF ITAT FOR BROTHERS CASE FILED. TIME GIVEN TO THE LD. SR. DR MS. CHANDRAKANTA TO GO THRO UGH THE SAME ADJOURNED TO 24/01/201. READ OUT IN THE TRIBUNAL(RT) SD/- DIVA SINGH JUDICIAL MEMBER 7. LD. SR. DR AGREEING THAT THE SAID PRAYER HAD BEE N MADE ON THE EARLIER DATE PLACED RELIANCE UPON THE IMPUGNED ORDER. 8. I HAVE HEARD THE RIVAL SUBMISSION AND PERUSED TH E MATERIAL AVAILABLE ON RECORD IT IS SEEN THAT IN THE AFORESAID ORDER OF THE ITAT IN THE CASE OF ASSESSEES BROTHER ON SIMILAR SET OF FACTS AND CIRCUMSTANCES FOLLOWING SPECIFIC G ROUND WAS RAISED: 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OFRS. 36,89,382/- MADE BY THE A.O. UNDER SECTION 68 OF THE I.T. ACT, 3 1961 PARTICULARLY WHEN THE LD. CIT(A) HIMSELF RECOR DED FINDING THAT THE SAID PARTNERS WOULD NOT HAVE HAD SUFFICIENT MONEY FOR INVESTMENT AS CAP ITAL IN THE ASSESSEE FIRM IN THE BEGINNING OF F.Y. 2007-08 AND THAT THE VERIFICATION PRODUCED BEFORE HIM IN THE NAME OF ONE OF PARTNERS IS NO CONFIRMATION IN THE EYES OF L AW 8.1. IT IS SEEN CONSIDERING THAT CONSIDERING THE SU BMISSIONS ON BEHALF OF THE ASSESSEE AND THE REVENUE THE MATTER WAS REMANDED TO THE AO I N THE FOLLOWING MANNER: 2. THE LD. AR INVITING ATTENTION TO THE PECULIAR FA CTS AVAILABLE ON RECORD, INVITED ATTENTION TO THE FACTS AS CONSIDERED AND ADDRESSED BEFORE THE CI T(A) IN SUPPORT OF THE PRAYER FOR A REMAND OF THE PROCEEDINGS TO THE AO. REFERRING TO T HE SAME, IT WAS SUBMITTED, THAT THE BASIS OF RE-OPENING OF THE ASSESSMENT IS THE ORDER OF CIT(A) IN THE CASE OF THE FIRM M/S VRRH IN WHICH APPELLANT IS ONE OF THE PARTNERS. ASSESSEE AND OTHER PARTNERS INTRODUCED CAPITAL IN THE SAID FIRM AND THE CAPITAL INTRODUCED WAS TREATE D AS UNEXPLAINED AND WAS DELETED IN THE HANDS OF THE FIRM AND THE C1T(A) MADE AN OBSERV ATION THAT THE AO MAY LOOK INTO THE POSSIBILITY OF RE-OPENING THE CASES OF THE PARTNERS FOR THE RELEVANT ASSESSMENT YEAR U/S 148 SINCE, THE CAPITA' INTRODUCED BY THE PARTNERS INCLU DING THE APPELLANT IS FAR MORE THEN INCOME DECLARED BY THEM. IT WAS SUBMITTED THAT THIS ORDER OF CIT(A) HAS BEEN SET ASIDE BY THE ITAT AND THEREFORE WHEN THE VERY BASIS OF RE-OP ENING OF THE PRESENT CASE HAS BEEN SET- ASIDE THE RE-OPENING HAS BEEN RENDERED ILLEGAL. REL IANCE WAS PLACED ON THE RATIO OF THE JUDGEMENT OF KARNATAKA HIGH COURT IN THE CASE OF S. L BASAVSRAI (HUF) U/S ACIT ITA NO. 336(.2009). ORDER OF THE ITAT IN ITA 1109/CHD/2014 IN THE CASE OF M/S VRRH V ITO, CHANDIGARH DATED 28.11.2016, IT WAS SUBMITTED, IS P LACED AT PAPER BOOK PAGE NO. 31-33. ACCORDINGLY, IT WAS HIS LIMITED PRAYER THAT IN TERM S OF THE DIRECTIONS THEREIN, THE ORDER MAY BE REMANDED. 3. THE LD. SR.DR CONSIDERING THE RECORD IN THE LIGH T OF THE ORDER OF THE ITAT AND THE AFORESAID PRAYER OF THE LD. AR, HAD NO OBJECTION IF THE ISSUE IS ALSO REMANDED BACK TO THE AO. 4. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH IN THE FACTS AS ARGUED, I FIND THAT IT WOULD BE IN THE INTEREST OF JUSTICE TO SET ASIDE THE IMPU GNED ORDER BACK TO THE FILE OF THE AO TO TAKE A VIEW IN CONFORMITY WITH THE VIEW TAKEN IN IT A 1109/CHD/2014 IN THE CASE OF M/S VRRH, CHANDIGARH. NEEDLESS TO SAY THAT ASSESSEE SHA LL PARTICIPATE IN THE PROCEEDINGS FULLY AND FAIRLY AND SHALL NOT ABUSE THE TRUST DEPOSED, F AILING WHICH THE AO WOULD BE AT LIBERTY PASS A SPEAKING ORDER ON THE BASIS OF MATERIAL AVAI LABLE ON RECORD. THUS, IT IS HOPED THAT THE ASSESSEE IN ITS OWN INTEREST MAKES FULL AND PRO PER COMPLIANCE BEFORE THE SAID AUTHORITY. 8.2. ACCORDINGLY IN THE LIGHT OF THE AFORESAID FACT S AND CIRCUMSTANCES AND CONSIDERING THE IDENTICAL SUBMISSIONS OF THE PARTIE S BEFORE THE BENCH THE IMPUGNED ORDER IS SET ASIDE WITH IDENTICAL DIRECTION BACK TO THE ASSESSING OFFICER WITH THE DIRECTION TO THE ASSESSING OFFICER TO PASS A SPEAKING ORDER I N ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEAR D. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 9. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. SD/- (DIVA SINGH) JUDICIAL MEMBER 26/02/2019 DATED : AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR