The sh. Harneet Singh, Phagwara V. The Income Tax Officer, Phagwara

MA 11/ASR/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6985 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 8 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-08-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 22-06-2018
• Assessment Year: 2009-2010
• Appeal Filed On: 13-12-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: BHAGAT
• Assessee Lawyers: S S NEGI
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N. K. CHOUDHRY, JUDICIAL MEMBER M. A. NO. 11/ASR/2017 (ARISING OUT OF ITA NO. 131/ASR/2014) ASSESSMENT YEARS: 2007-08 & 2009-10 HARNEET SINGH, PROP. DOABA FINANCE COMPANY, PHAGWARA [PAN: ABQPS 4502E] VS. INCOME TAX OFFICER, WARD-1, PHAGWARA (APPLICANT) (RESPONDENT) APPELLANT BY : SH. M. R. BHAGAT RESPONDENT BY: SH. S. S. NEGI (D.R.) DATE OF HEARING: 22.06.2018 DATE OF PRONOUNCEMENT: 27.08.2018 ORDER PER SANJAY ARORA, AM: THIS IS A MISCELLANEOUS PETITION U/S. 254(2) OF THE INCOME TAX ACT, 1961, ('THE ACT' HEREINAFTER), BY THE ASSESSEE IN RESPECT OF THE CAPTIONED ORDER DATED 09/09/2015, DECIDING THE REVENUES APPEALS FOR THE ASSESSMENT YEARS (AYS.) 2007-08 & 2009-10 PER A CONSOLIDATED ORDER. 2. OPENING THE ARGUMENTS FOR AND ON BEHALF OF THE A SSESSEE-APPLICANT, IT WAS SUBMITTED BY THE LD. COUNSEL, SH. M. R. BHAGAT, ADV OCATE, THAT THE APPEALS FOR THE TWO YEARS UNDER REFERENCE, RAISING SAME ISSUES, I.E ., ON MERITS, WERE FIXED FOR AND, ACCORDINGLY, HEARD BY THE TRIBUNAL TOGETHER. PLEADI NGS WERE, HOWEVER, URGED ONLY IN RESPECT OF ADMISSION OF ADDITIONAL EVIDENCE, HAV ING BEEN CLAIMED TO BE ADMITTED M.A. NO. 11/ASR/2017 (AY 2009-10) HARNEET SINGH V. ITO 2 BY THE FIRST APPELLATE AUTHORITY, I.E., WITHOUT OBS ERVING THE MANDATORY PROCEDURE UNDER RULE 46A OF THE INCOME TAX RULES, 1962, SPECI FIC GROUND IN RESPECT OF WHICH WAS THOUGH RAISED BY THE REVENUE ONLY FOR AY 2009-10. HE WOULD THEN TAKE US THROUGH THE IMPUGNED ORDER, THE CONCLUDING PART OF WHICH READS AS UNDER: 5. NOW LET US EXAMINE THE FINDINGS OF LEARNED CIT(A ). THE FINDINGS AS CONTENDED IN PARA 3.2 OF HIS ORDER READS AS UNDER: 3.2 SHRI M.R. BHAGAT, LEARNED REPRESENTATIVE OF TH E APPELLANT STATED THAT ELDER SISTER OF THE APPELLANT IS A NON-RESIDENT AND FILING RETURNS OF I NCOME IN U.S.A. PHOTO COPIES OF U.S. INDIVIDUAL INCOME TAX RETURNS FOR 2006, 2007 & 2008 WERE PLACED ON RECORD. EVEN HER AFFIDAVIT DULY ATTESTED AND PHOTOCOPY OF HER PASSPO RT WERE PLACED IN RECORD. THE A.O. WHO WAS FORWARDED THE APPLICATION FOR ADMISSION OF ADDI TIONAL EVIDENCE DID NOT RAISE ANY SERIOUS OBJECTION TO PRODUCTION OF ADDITIONAL EVIDENCE EXCE PT THAT SUFFICIENT OPPORTUNITY WAS AFFORDED TO THE APPELLANT AT THE ASSESSMENT STAGE. AS ALL THE EVIDENCE SUBMITTED BY THE APPELLANT ALONG WITH APPLICATION DATED 06.09.2010 A RE RELEVANT TO THE ISSUES INVOLVED IN THE APPEAL, THEREFORE, IN THE INTEREST OF NATURAL JUSTI CE THOSE ARE ADMITTED UNDER RULE 46A OF THE INCOME TAX RULES, 1962. FROM THE FINDINGS AS RECORDED BY THE LEARNED CIT(A) , WE DO NOT FIND THAT HE HAS RECORDED ANY REASONS FOR ADMISSION OF ADDITIONAL EVIDENCES AND T HEREFORE, WE DEEM IT APPROPRIATE TO REMIT THE APPEALS TO LEARNED CIT(A) WHO SHOULD PASS A SPE AKING ORDER FOR ADMISSION OF ADDITIONAL EVIDENCES AND PASS A FRESH ORDER ON MERITS ACCORDIN GLY. THE ORDERS WERE PRONOUNCED IN THE OPEN COURT AT THE CONCLUSION OF HEARING ITSELF. SUC H ORDER AS PRONOUNCED ORALLY IN THE OPEN COURT, ARE PRONOUNCED IN WRITING ON THIS DATE. THE OBSERVATIONS BY THE LD. CIT(A), QUOTED BY THE T RIBUNAL AT PARA 5 OF ITS ORDER, HE WOULD CONTINUE, ARE FOR AY 2007-08, FOR WHICH YEAR THERE WAS IN FACT ADMISSION OF ADDITIONAL EVIDENCE BY HIM. IT IS CLEAR THAT THE TR IBUNAL, THOUGH RELYING ON THE OBSERVATIONS BY HE WOULD CONTINUE, THE LD. CIT(A) F OR AY 2007-08, HAS YET DISPOSED THE APPEALS FOR BOTH THE YEARS ON THIS LIM ITED ISSUE, SETTING ASIDE THE ORDERS UNDER APPEAL. THERE WAS IN FACT NO ADDITIONA L EVIDENCE FOR AY 2009-10, SO THAT THE ISSUE OF ITS ADMISSION BY THE LD. CIT(A) DOES NOT ARISE. THERE HAS THUS OCCURRED A MISTAKE ON THE PART OF THE TRIBUNAL IN S ETTING ASIDE, AS FOR AY 2007-08, THE APPELLATE ORDER FOR AY 2009-10. THERE HAS IN FA CT BEEN NO ADJUDICATION BY THE TRIBUNAL ON THIS ISSUE FOR AY 2009-10. THE LD. DR W OULD, ON THE OTHER HAND, SUBMIT M.A. NO. 11/ASR/2017 (AY 2009-10) HARNEET SINGH V. ITO 3 THAT THERE WAS A CONSCIOUS DECISION ON THE PART OF THE TRIBUNAL IN SETTING ASIDE THE ORDERS BY THE FIRST APPELLATE AUTHORITY FOR BOTH TH E YEARS UNDER APPEAL. IN FACT, THE APPEALS FOR BOTH THESE YEARS WERE HEARD BY THE TRIB UNAL ONLY IN RESPECT OF THIS GROUND. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. IT IS APPARENT THAT THE LIMITED ISSUE ARGUED BEFOR E AND DECIDED BY THE TRIBUNAL FOR BOTH THE YEARS WAS WHETHER THERE HAS BEEN, IN D ECIDING THE REVENUES APPEALS FOR THE RELEVANT YEARS, A CONTRAVENTION OF R. 46A B Y THE FIRST APPELLATE AUTHORITY. THIS IS AS, WHERE SO, IT WOULD NOT BE REQUIRED TO A DJUDICATE ON THE MERITS OF THE OTHER GROUNDS, AS INDEED IT DID NOT. OUR FIRST OBSERVATION IN THE MATTER IS THAT THE VER Y FACT THE REVENUE RAISED THIS ISSUE FOR AY 2009-10 IMPLIES THAT SOME ADDITIO NAL EVIDENCE WAS, IN ITS VIEW, PRODUCED BEFORE AND ADMITTED BY THE FIRST APPELLATE AUTHORITY FOR THIS YEAR, ATTRACTING THE PROCEDURE PRESCRIBED U/R. 46A. FURTHER, AGAIN, ADMITTEDLY THE TRIBUNAL HEARD THE P ARTIES ON THIS LIMITED ISSUE FOR BOTH THE YEARS. HOW COULD THEN IT BE SAID THAT IT DID NOT ADJUDICATE THE REVENUES APPEAL FOR AY 2009-10? RATHER, THE VERY F ACT THAT THE TRIBUNAL DID NOT PROCEED FURTHER THAT IS, TO HEAR THE APPEAL ON ME RITS FOR BOTH THE YEARS, ITSELF MAKES IT ABUNDANTLY CLEAR THAT IT WAS, FOR BOTH THE YEARS, OF THE VIEW THAT THERE HAD BEEN A BREACH OF RULE 46A. THAT IS, THE TRIBUNAL WA S CONSCIOUS THAT IT IS DECIDING THE APPEALS FOR BOTH THE YEARS, FOR WHICH IN FACT THE R EVENUE HAD RAISED A SPECIFIC GROUND FOR AY 2009-10, WHICH IS THE ONLY YEAR PRESS ED BY THE LD. COUNSEL, MR. BHAGAT, BEFORE US, STATING TO WITHDRAW THE MISCELLA NEOUS APPLICATION FOR AY 2007- 08. IN FACT, WE FURTHER NOTE THAT WHILE SPECIFIC PL EADINGS WERE MADE BY LD. DEPARTMENTAL REPRESENTATIVE (DR) QUA THIS GROUND (GD. 3) FOR AY 2009-10 ( AT PARA 2 OF THE IMPUGNED ORDER), THERE WAS NO REBUTTA L BY THE LD. AR THEREON (PARA 3). M.A. NO. 11/ASR/2017 (AY 2009-10) HARNEET SINGH V. ITO 4 HOW COULD, THEN, IT BE SAID THAT THE TRIBUNAL DID N OT DECIDE THE REVENUES GROUND 3 BEFORE IT FOR AY 2009-10, RAISING THIS ISSUE? AS AFORE-NOTED, THE VERY CONTENTION BEING NOW RAISE D, I.E., THAT THERE WAS NO ADDITIONAL EVIDENCE ADDUCED BY THE ASSESSEE BEFORE THE FIRST APPELLATE AUTHORITY FOR AY 2009-10, OUGHT TO HAVE BEEN RAISED BEFORE THE TR IBUNAL. RAISING THE SAME AN ARGUMENT ON MERITS, NOW, WOULD AMOUNT TO HEARING TH E APPEAL, AND WHICH CANNOT BE. THAT IS, THE SAME WOULD AMOUNT TO A REVIEW AND, THUS, CANNOT BE ENTERTAINED. FURTHER STILL, HOW COULD THE HEARING FOR AY 2009-10 BE CLOSED ONLY AFTER HEARING THE PARTIES ON THE REVENUES GD. 3, I.E., IF THE TR IBUNAL WAS NOT OF THE CLEAR VIEW THAT THERE HAD INDEED BEEN A CONTRAVENTION OF RULE 46A FOR THIS YEAR AS WELL? THE ASSESSEES COUNSEL, WHO NOW REPRESENTS IT BEFORE US , OUGHT TO HAVE BROUGHT TO THE NOTICE OF THE BENCH THE OTHER GROUNDS RAISED BY THE REVENUE BEFORE IT, SO THAT THERE WAS CLEARLY AN ACQUIESCENCE ON HIS PART WHEN HE DID NOT RAISE SUCH AN OBJECTION TO THE TRIBUNALS CLOSING THE HEARING FOR AY 2009-10 A FTER HEARING THE PARTIES ON THIS LIMITED ISSUE. BE THAT AS IT MAY, THERE IS NO SPECIFIC REFERENCE T O THE RELEVANT FACTS, I.E., THE ADDITIONAL EVIDENCE UNDER REFERENCE, OR EVEN TO THE OBSERVATIONS BY THE FIRST APPELLATE AUTHORITY FOR AY 2009-10, BY THE TRIBUNAL PER ITS CONSOLIDATED ORDER. IF INDEED THERE WAS NO ADDITIONAL EVIDENCE LED BY THE ASSESSEE BEFORE THE FIRST APPELLATE AUTHORITY, AS CONTENDED BEFORE US, THE AS SESSEE WOULD BE PUT TO UNDUE BURDEN. ON THE OTHER HAND, IF THERE IS, THE TRIBUNA L SHALL DECIDE LIKEWISE, I.E., AS DONE EARLIER, ALBEIT BY ISSUING A SPECIFIC FINDING IN THE MATTER, SO THAT THE ASSESSEE DOES NOT STAND TO GAIN BY MAKING A FALSE PLEA. WE, THEREFORE, GIVING THE ASSESSEE A BENEFIT OF DOUBT, AND IN VIEW OF NO PREJUDICE BEING CAUSED TO THE REVENUE, CONSIDER IT PROPER, IN THE INTEREST OF JUSTICE AND FAIRNESS, TO RECALL THE TRIBUNALS ORDER DECIDING THE REVENUES APPEAL FOR AY 2009-10 ON MERITS, I.E., INCLUDING ITS GROUND 3. M.A. NO. 11/ASR/2017 (AY 2009-10) HARNEET SINGH V. ITO 5 WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE REVENUES MISCELLANEOUS PETIT ION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON AUGUST 27, 20 18 SD/- SD/- (N. K. CHOUDHRY) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 27.08.2018 /GP/SR. PS. COPY OF THE ORDER FORWARDED TO: (1) THE APPELLANT: HARNEET SINGH PROP. DOABA FI NANCE COMPANY, PHAGWARA (2) THE RESPONDENT: INCOME TAX OFFICER, WARD- 1 , PHAGWARA (3) THE CIT (4) THE CIT CONCERNED (5) THE SR. DR, I.T.A.T TRUE COPY BY ORDER