SHRI VIRENDER YADAV, ALWAR V. INCOME TAX OFFICER, BEHROR

MA 11/JPR/2020

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 1674 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-05-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 27-01-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K C GUPTA JCIT DHK
• Assessee Lawyers: RAJIV SOGANI
• Keywords: Additional evidence; Bonafide mistake; Set aside
• Section: 133(6); 274; 254(2); 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES A, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM M.A. NO. 11/JP/2020 (ARISING OUT OF ITA NO. 1340/JP/2018) FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2012-13 SHRI VIRENDER YADAV, S/O- LATE SHRI JEET SINGH YADAV, VILLAGE- SANOLI, TEHSIL- MUNAWAR, DISTT. ALWAR. CUKE VS. INCOME TAX OFFICER, BEHROR. LFKK;H YS[KK LA -@THVKBZVKJ LA -@ PAN/GIR NO.: ABPPY 6892 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI RAJIV SOGANI (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI K.C. GUPTA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 06/03/2020 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 08/05/2020 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. BY WAY OF THIS MISC. APPLICATION, THE ASSESSEE IS SEEKING RECALLING OF THE ORDER DATED 12/12/2019 OF THIS TRIBUNAL PASSED IN ITA NO. 1340/JP/2018 WHEREBY THE APPEAL OF THE REVENUE WAS DECIDED EX PARTE DUE TO NON-APPEARANCE OF THE ASSESSEE DESPITE THE SERVICE OF NOTICE. 2. THE LD. A.R. OF THE ASSESSEE/APPLICANT WAS SUBMITTED THAT THE NOTICE OF HEARING FIXED ON 10/12/2019 WAS RECEIVED BY THE ASSESSEE, MA 11/JP/2020_ VIRENDER YADAV VS ITO 2 HOWEVER, THE ASSESSEE WAS UNDER THE IMPRESSION THAT THE CHARTERED ACCOUNTANT (CA) IS TAKING CARE OF THE MATTER, THEREFORE, HE COULD NOT EITHER APPEAR IN PERSON OR THROUGH HIS AUTHORIZED REPRESENTATIVE. SUBSEQUENTLY, THE ASSESSEE ENQUIRED FROM HIS C.A. ABOUT THE STATUS OF THE CASE AND CAME TO KNOW THAT THE APPEAL OF THE REVENUE WAS DECIDED EX PARTE. THUS, NON-APPEARANCE ON BEHALF OF THE ASSESSEE IS NEITHER INTENTIONAL NOR DELIBERATE BUT DUE TO INADVERTENT AND BONAFIDE MISTAKE ON THE PART OF THE ASSESSEE. THE LD AR HAS FURTHER SUBMITTED THAT SINCE THE ASSESSEE DID NOT COMMUNICATE THE DATE OF HEARING TO THE C.A., THEREFORE, HE COULD NOT APPEAR BEFORE THE BENCH ON THE DATE OF HEARING. THE LD AR HAS ALSO REFERRED TO THE AFFIDAVITS FILED BY THE ASSESSEE IN SUPPORT OF THE APPLICATION AND SUBMITTED THAT THE IMPUGNED EX PARTE ORDER PASSED BY THE TRIBUNAL WITHOUT GIVING AN OPPORTUNITY TO THE ASSESSEE MAY BE RECALLED AND THE MATTER MAY BE FIXED FOR FRESH HEARING. IN SUPPORT OF HIS CONTENTION, HE HAS RELIED UPON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS ANSAL HOUSING AND CONSTRUCTION LTD. 274 ITR 131 (DEL) AS WELL AS DECISION OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS GHERU LAL BAL CHAND 269 ITR 386 AND SUBMITTED THAT THE HONBLE HIGH COURT HAS HELD THAT WHEN THE ASSESSEE HAS EXPLAINED A VALID REASON FOR NON-APPEARANCE THEN EVEN IF THE MATTER WAS DECIDED ON MERIT BY AN EX PARTE ORDER, SETTING ASIDE SUCH AN EX PARTE MA 11/JP/2020_ VIRENDER YADAV VS ITO 3 ORDER ON THE GROUND EXPLAINED BY THE ASSESSEE FOR NON-ATTENDANCE OF HEARING IS JUSTIFIED. THUS, THE LD AR HAS CONTENDED THAT THE IMPUGNED EX PARTE ORDER MAY BE RECALLED FOR GIVING AN OPPORTUNITY TO THE ASSESSEE OF HEARING. 3. ON THE OTHER HAND, THE LD DR HAS SUBMITTED THAT DESPITE THE SERVICE OF THE NOTICE ISSUED BY THE TRIBUNAL, THE ASSESSEE DID NOT BOTHER TO ATTEND THE HEARING AND THEREFORE, THE TRIBUNAL WAS HAVING NO OPTION BUT TO HEAR AND DECIDE THE MATTER EX PARTE. THE TRIBUNAL HAS PASSED A DETAILED ORDER ON MERITS OF THE CASE AFTER CONSIDERING ALL THE RELEVANT FACTS AS WELL AS THE CONTENTIONS OF THE PARTIES AS RAISED BEFORE THE AUTHORITIES BELOW AND PARTICULARLY THE ARGUMENTS OF THE ASSESSEE BEFORE THE A.O. AS WELL AS THE LD. CIT(A). THEREFORE, SUCH A DECISION GIVEN ON THE MERITS OF THE CASE CANNOT BE REVIEWED OR AMENDED UNDER THE PROVISIONS OF SECTIONS 254(2) OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT). THUS, THE LD DR HAS OBJECTED TO THE MISC. APPLICATION FILED BY THE ASSESSEE AND SUBMITTED THAT IT WOULD AMOUNT TO REVIEW ITS OWN ORDER WHICH IS NOT PERMISSIBLE UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT. THE LD DR HAS FURTHER SUBMITTED THAT EVEN OTHERWISE THE TRIBUNAL HAS REMANDED THE MATTER TO THE RECORD OF THE A.O. FOR CONDUCTING A PROPER ENQUIRY AND THEREFORE, IT IS NOT A CASE OF DECIDING THE MATTER AGAINST THE ASSESSEE. MA 11/JP/2020_ VIRENDER YADAV VS ITO 4 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THE APPEAL OF THE REVENUE WAS TAKEN UP FOR HEARING EX PARTE BECAUSE NOBODY HAS APPEARED ON BEHALF OF THE ASSESSEE NOR ANY APPLICATION FOR ADJOURNMENT WAS FILED ON THE DATE OF HEARING. THE TRIBUNAL HAS RECORDED THE REASONS FOR TAKING UP THE MATTER FOR EX PARTE HEARING AND DISPOSAL IN PARA 2 OF THE IMPUGNED ORDER AS UNDER: 2. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE RESPONDENT DESPITE THE NOTICE SENT THROUGH THE AO WAS DULY SERVED ON THE ASSESSEE AS PER THE ACKNOWLEDGEMENT AND REPORT OF THE AO. WE FURTHER NOTE THAT SINCE BEGINNING THE ASSESSEE HAS NOT BEEN APPEARING DESPITE THE NOTICES ISSUED, THEREFORE, IN THE FACTS AND CIRCUMSTANCES WHEN THE NOTICE WAS DULY SERVED UPON THE ASSESSEE AS PER THE ACKNOWLEDGEMENT OF THE ASSESSEE AND NOBODY HAS APPEARED ON BEHALF OF THE ASSESSEE, WE PROPOSED TO HEAR AND DISPOSE OFF THE APPEAL OF THE REVENUE EX PARTE. THUS, IT IS CLEAR THAT SINCE BEGINNING, THE ASSESSEE WAS NOT APPEARING BEFORE THE TRIBUNAL DESPITE NOTICES ISSUED THROUGH RPAD. THEREAFTER THE TRIBUNAL DIRECTED THE SERVICE OF NOTICE THROUGH THE ASSESSING OFFICER (A)) AND THE NOTICE WAS FINALLY SERVED ON THE ASSESSEE THROUGH THE A.O. WHICH IS NOT IN DISPUTE. HOWEVER, DESPITE THE SERVICE OF NOTICE FOR THE HEARING OF THE MATTER FIXED ON 10/12/2019 AGAIN NO BODY HAS APPEARED ON BEHALF OF THE ASSESSEE NOR ANY APPLICATION FOR ADJOURNMENT OF HEARING WAS FILED, THEREFORE, IN THOSE CIRCUMSTANCES, THE TRIBUNAL WAS LEFT WITH NO OPTION MA 11/JP/2020_ VIRENDER YADAV VS ITO 5 BUT TO HEAR AND DISPOSE OF THE APPEAL OF THE REVENUE EX PARTE. EVEN IN THE MISC. APPLICATION AS WELL AS IN THE AFFIDAVITS, THE ASSESSEE HAS NOT DISPUTED THESE FACTS THAT THE SERVICE OF NOTICE WAS DULY SERVED ON THE ASSESSEE AND THE ASSESSEE DID NOT TAKE ANY STEPS OR ARRANGEMENT FOR CAUSING THE APPEARANCE BEFORE THE TRIBUNAL. THE ASSESSEE HAS CITED THE REASONS FOR NON-APPEARANCE THAT HE WAS UNDER THE IMPRESSION THAT HIS C.A. WILL TAKE CARE OF THE MATTER, HOWEVER, IT IS PERTINENT TO NOTE THAT THERE WAS NO AUTHORITY IN FAVOUR OF ANY C.A. OR COUNSEL FILED ON RECORD OF THE APPEAL AND THEREFORE, THIS CONTENTION OF THE ASSESSEE THAT HIS C.A. WILL TAKE CARE OF THE MATTER IS NOT SUPPORTED BY ANY MATERIAL, FACTS OR EVIDENCE. WHEN THE ASSESSEE HAS NOT AUTHORIZED ANY COUNSEL OR REPRESENTATIVE TO APPEAR BEFORE THE TRIBUNAL PRIOR TO THE DATE OF THE IMPUGNED ORDER THEN THE SAID REASON OR CAUSE FOR NON-APPEARANCE AS EXPLAINED BY THE ASSESSEE IS CONTRARY TO THE RECORD AS WELL AS THE FACTS. THE POWER OF ATTORNEY FILED ON RECORD OF THE MISC. APPLICATION WAS SIGNED ON 27/01/2020 AT THE TIME OF FILING OF MISC. APPLICATION, THEREFORE, THERE WAS NO AUTHORIZATION PRIOR TO 27/01/2020. EVEN OTHERWISE, THE ASSESSEE HAS NOT POINTED OUT THE MISTAKE IN THE IMPUGNED ORDER ON ACCOUNT OF NON-CONSIDERATION OF ANY MATERIAL OR RELEVANT FACT WHICH COULD HAVE INFLUENCED THE FINDING OF THE TRIBUNAL. THE TRIBUNAL REMANDED THE MATTER TO THE RECORD OF THE A.O. FOR CONDUCTING A FRESH ENQUIRY AND FOR GIVING AN MA 11/JP/2020_ VIRENDER YADAV VS ITO 6 OPPORTUNITY OF HEARING TO THE ASSESSEE AND THEN DECIDING THE ISSUE AFRESH IN PARA 4 OF THE IMPUGNED ORDER AS UNDER: 4. HAVING CONSIDERED THE SUBMISSIONS OF THE LD. D/R AND GOING THROUGH THE ORDERS OF THE AUTHORITIES BELOW, WE FIND THAT DURING THE ASSESSMENT PROCEEDINGS, THE AO GRANTED AS MANY AS 20 OPPORTUNITIES TO THE ASSESSEE. THE DETAILS OF THE NOTICES ISSUED BY THE AO GIVEN AT PAGE 3 OF THE ASSESSMENT ORDER AS UNDER :- THE AO ISSUED NOTICE UNDER SECTION 133(6) TO THE SUB REGISTRAR, NEEMRANA AND ON RECEIVING THE DETAILS OF THE DOCUMENTS FROM CONCERNED SUB REGISTRAR, THE AO FOUND THAT THE ASSESSEE HAD MADE INVESTMENT OF RS. 2,69,82,340/-. ALL THESE ENQUIRIES WERE CONDUCTED MA 11/JP/2020_ VIRENDER YADAV VS ITO 7 BY THE AO DUE TO THE REASON THAT THE ASSESSEE DID NOT COOPERATE AND FILE THE DETAILS REGARDING THE INVESTMENT MADE IN THE IMMOVABLE PROPERTIES. ONLY WHEN THE AO ISSUED THE SHOW CAUSE NOTICE TO FRAME THE ASSESSMENT UNDER SECTION 144 OF THE IT ACT AND ALSO ISSUED SUMMON UNDER SECTION 131, THE ASSESSEE FURNISHED A COPY OF THE ALLEGED AGREEMENT DATED 07.05.2011 AND CLAIMED THAT THE SOURCES OF INVESTMENT IS SALE PROCEEDS OF LAND FOR A CONSIDERATION OF RS. 2,88,60,000/- TO ONE SHRI T. LACHUNAGAPA RESIDENT OF GANGTOK (SIKKIM). IT IS PERTINENT TO NOTE THAT IT IS BEYOND PREPONDERANCE OF HUMAN PROBABILITY THAT A PERSON FROM GANGTOK (SIKKIM) WOULD PURCHASE A LAND IN RAJASTHAN AGAINST A CONSIDERATION OF RS. 2,88,60,000/- WITHOUT HAVING A PROPER TITLE DEED IN HIS FAVOUR. THE ALLEGED AGREEMENT TO SELL IS NOT A DOCUMENT WHICH CAN BE VERIFIED INDEPENDENTLY AND CAN BE CONSIDERED AS A CONCLUSIVE EVIDENCE FOR TRANSACTION OF PURCHASE AND SALE OF THE IMMOVABLE PROPERTIES. EVEN OTHERWISE, THE IMMOVABLE PROPERTIES CANNOT BE TRANSFERRED UNDER SUCH AN UNREGISTERED DOCUMENT BEING AGREEMENT TO SELL. THE DETAILS OF ASSESSEES SHARE IN THE ALLEGED ANCESTRAL LAND ARE ALSO NOT AVAILABLE ON RECORD. IT IS ALSO NOT CLEAR FROM THE RECORD WHETHER THE ASSESSEE WAS HAVING THE SHARE IN THE ANCESTRAL PROPERTY TO THE EXTENT OF 19.20 BIGHA. FURTHER, NOT EXECUTING THE SALE DEED AND REGISTRATION WITH THE AUTHORITIES EVEN AFTER THE EXPIRY OF SUCH A LONG TIME CREATES A GENUINE DOUBT ABOUT THE TRANSACTION. THEREFORE, THE GENUINENESS OF THE CLAIM HAS NOT BEEN ESTABLISHED WITH VERIFIABLE DOCUMENTARY EVIDENCE. IT IS ALSO A RELEVANT FACT THAT THE ALLEGED PURCHASER OF THE LAND BEING A SIKKIMESE, IS EXEMPT FROM INCOME TAX AS PER SECTION 10(26AAA) OF THE IT ACT. THEREFORE, THE POSSIBILITY OF USING THE NAME OF SUCH A PERSON AS A DEVICE TO EVADE THE TAX CANNOT BE RULED OUT. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE SET ASIDE THIS MATTER TO THE RECORD OF THE AO FOR CONDUCTING A PROPER MA 11/JP/2020_ VIRENDER YADAV VS ITO 8 ENQUIRY PARTICULARLY ON THE POINT OF THE ASSESSEES SHARE IN THE ALLEGED ANCESTRAL PROPERTY AND WHETHER THE SAID PROPERTY IS AVAILABLE IN THE EXCLUSIVE RIGHT OF THE ASSESSEE FOR TRANSFER. THE STATUS OF THE LAND REGARDING THE POSSESSION AND THE REAL OWNERSHIP IS ALSO REQUIRED TO BE VERIFIED. NEEDLESS TO SAY THAT THE ASSESSEE BE GIVEN A PROPER OPPORTUNITY OF HEARING BEFORE PASSING THE FRESH ASSESSMENT ORDER. EVEN THE DIRECTIONS U/S 144A OF THE ACT WERE GIVEN BY THE ADDL.CIT VIDE LETTER DATED 08/01/2016 DIRECTING THE A.O. TO COMPLETE THE ASSESSMENT AS PER THE RULES AND IF THE ASSESSEE DOES NOT COOPERATE IN THE ASSESSMENT PROCEEDINGS, THE A.O. COULD COMPLETE THE ASSESSMENT EX PARTE U/S 144 OF THE ACT. THUS, IT IS CLEAR FROM THE RECORD THAT MORE THAN SUFFICIENT OPPORTUNITIES WERE GIVEN BY THE A.O. TO THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS. BEFORE THE LD. CIT(A), THE ASSESSEE FILED HIS SUBMISSIONS ALONGWITH ADDITIONAL EVIDENCE UNDER RULE 46A OF THE INCOME TAX RULES 1962 (IN SHORT, THE RULES) WHICH WERE FORWARDED TO THE A.O. FOR EXAMINATION AND REMAND REPORT. DURING THE REMAND PROCEEDINGS, THE STATEMENT OF THE ALLEGED PURCHASER OF THE LAND OF THE ASSESSEE WAS RECORDED. BASED ON SUCH STATEMENT OF THE PURCHASER SHRI T.LACHUNAGAPA, A NATIVE OF STATE OF SIKKIM THE LD CIT(A) DELETED THE ADDITION MADE BY THE A.O. AS IT IS CLEAR FROM THE FINDING OF THE TRIBUNAL THAT THE ALLEGED TRANSACTION OF TRANSFER OF THE LAND BY THE ASSESSEE IS WITHOUT ANY PROPER TITLE DOCUMENT AS NO DOCUMENT WAS REGISTERED, THEREFORE, THE TRIBUNAL MA 11/JP/2020_ VIRENDER YADAV VS ITO 9 FINALLY REMANDED THE MATTER TO THE RECORD OF THE A.O. TO VERIFY THE STATUS OF THE SAID PROPERTY OWNED BY THE ASSESSEE AND THE ALLEGED TRANSFER IN FAVOUR OF THE NATIVE OF STATE OF SIKKIM WHO IS EXEMPT FROM INCOME TAX AS PER SECTION 10(26AAA) OF THE ACT. THERE IS NO QUARREL THAT IF AN EX PARTE ORDER IS PASSED WITHOUT HEARING THE RESPONDENT/ASSESSEE THEN IF THE ASSESSEE HAS EXPLAINED THE REASON FOR NON-APPEARANCE TO THE SATISFACTION OF THE TRIBUNAL THEN THE TRIBUNAL SHOULD RECALL THE ORDER TO GIVE AN OPPORTUNITY OF HEARING TO THE ASSESSEE AND DECIDE THE APPEAL AFRESH AFTER CONSIDERING THE ARGUMENTS AND CONTENTION OF THE ASSESSEE. HOWEVER, IN THE CASE IN HAND, THE TRIBUNAL HAS NOT GIVEN ANY FINDING ON THE MERITS OF THE ISSUE AND THERE IS NO ALLEGATION ON THE PART OF THE ASSESSEE REGARDING NON-CONSIDERATION OF ANY RELEVANT AND VITAL FACTS WHILE PASSING THE IMPUGNED ORDER. THEREFORE, THOUGH THE ASSESSEE HAS NOT EXPLAINED ANY PLAUSIBLE REASON FOR NON-APPEARANCE BEFORE THE TRIBUNAL, HOWEVER, EVEN IF THE IMPUGNED ORDER IS RECALLED FOR GIVING AN OPPORTUNITY TO THE ASSESSEE, NO PURPOSE WILL BE SERVED AND IT WILL BE ONLY AN EMPTY EXERCISE AS CERTAIN CRUCIAL FACTS HAVE NOT BEEN BROUGHT ON RECORD WHICH REQUIRES TO BE VERIFIED BY CONDUCTING A PROPER ENQUIRY AT THE LEVEL OF THE A.O. HENCE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY MERIT IN THIS MISC. APPLICATION OF THE ASSESSEE AND THE SAME IS HEREBY DISMISSED. MA 11/JP/2020_ VIRENDER YADAV VS ITO 10 5. IN THE RESULT, THIS MISC. APPLICATION OF THE ASSESSEE IS DISMISSED. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 08 TH MAY, 2020 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI VIRENDER YADAV, ALWAR. 2. IZR;FKHZ@ THE RESPONDENT- THE I.T.O., BEHROR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDRVIHY@ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (MA NO. 11/JP/2020) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR