Sh. Subhash Chander Aggarwal, Jalandhar V. The Dy. Commissioner of Inocme-tax, Jalandhar

MA 118/ASR/2014

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3976 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 7 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-03-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 17-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: J S BHASIN
• Keywords: Principle of natural justice; Assessment record

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER M.A. NO.118(ASR)/2014 (ARISING OUT OF ITA NO.120(ASR)/2012) ASSESSMENT YEAR:2008-09 PAN:AAKPA7004L SH. SUBHASH CHANDER AGGARWAL, VS. DEPUTY COMMIS SIONER OF PROP. M/S PRABH DAYAL, OM INCOME TAX, RANG E-III, PARKASH BAZAR NAUHRIAN, JALANDHAR. JALANDHAR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. J.S. BHASIN, ADVOCATE RESPONDENT BY: SH. TARSEM LAL, DR DATE OF HEARING: 11/03/2016 DATE OF PRONOUNCEMENT: 11/03/2016 ORDER PER A.D. JAIN, JM: THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS AP PLICATION AGAINST THE ORDER OF THE TRIBUNAL, DATED 23.05.2014 , PASSED IN ITA NO.120(ASR)/2012 FOR THE ASSESSMENT YEAR 2008-09. 2. IN THE MISC. APPLICATION, THE ASSESSEE HAS CONTE NDED AS UNDER: 1. THAT THE APPLICANT HEREIN IS IN RECEIPT OF THE ENCL OSED ORDER OF THE HON'BLE BENCH DATED 23.05.2014 WHEREBY THE ABOVE AP PEAL OF ASSESSEE HAS BEEN DISMISSED EX-PARTE, BY REJECTING THE ADJOU RNMENT APPLICATION DATED 16.05.2014 FILED BY ASSESSEE'S COUNSEL, SEEKI NG ADJOURNMENT WHEN THE CASE WAS LAST FIXED FOR HEARING ON 20 . 05 . 2014 . 2. THAT ON 20 . 05 . 2014 , THE ASSESSEE'S COUNSEL HAD SOUGHT ADJOURNMENT BY REFERRING TO HIS APPLICATION DATED 0 4.04.2014, ADDRESSED MA NO.18(ASR)/2014 2 TO THE HON'BLE PRESIDENT ITAT BOMBAY, WITH COPY END ORSED TO THIS BENCH, THEREBY SEEKING TRANSFER OF HIS CASES TO SOME OTHER BENCH, INTER-ALIA FOR THE REASONS CITED IN SAID APPLICATION. 3. THAT WHEN THE CASE WAS EARLIER FIXED FOR HEARING ON 23 . 04 . 2014 , ASSESSEE'S COUNSEL SOUGHT ADJOURNMENT ON THE SAME V ERY GROUND BY REFERRING TO HIS APPLICATION DATED 04.04.2014, WHER EUPON THE ADJOURNMENT HAD BEEN GRANTED AND THE MATTER FIXED FOR HEARING O N 20 . 05 . 2014 . 4. IN THE NOTICE OF HEARING SENT TO ASSESSEE FOR 2 0.05.2014, IT WAS OF COURSE MENTIONED, 'LAST OPPORTUNITY FOR FINAL ARGUM ENTS BEING OLD MATTER' (AS ALSO NOTED IN PARA 4 OF THE ORDER) BUT IT WAS N O WHERE UNFOLDED THAT GROUNDS ON WHICH THE ADJOURNMENT WAS SOUGHT, WERE R EJECTED. THEREFORE, WHEN THE COUNSEL'S APPLICATION DATED 04.04.20014 WA S STILL UNDER CONSIDERATION WITH THE HON'BLE PRESIDENT TILL 20.05 .2014, THE ADJOURNMENT WAS AGAIN SOUGHT ON THE SAME VERY GROUND, WHICH APP ARENTLY WAS FOUND ACCEPTABLE BY THE BENCH TO ADJOURN THE MATTER EARLI ER ON 23.04.2014. 5. THAT IT TRANSPIRED FIRST TIME ON READING PARA 3 OF THE IMPUGNED ORDER THAT ON 23.04.2014, THE GROUNDS SEEKING ADJOU RNMENT WERE REJECTED AND FINAL OPPORTUNITY GRANTED WAS IN THE INTEREST O F JUSTICE. HAD IT BEEN DISCLOSED EARLIER IN THE NOTICE ITSELF, THE SITUATI ON WOULD HAVE BEEN HANDLED ACCORDINGLY. THEREFORE, THE APPLICATION DATED 16.05 .2014 WAS FILED SEEKING ADJOURNMENT ON THE SAME VERY CAUSE, NURTURING THE B ONAFIDE BELIEF THAT WHEN IT WAS ACCEPTED ON EARLIER OCCASION, IT WOULD HOLD GOOD ANOTHER TIME, WHEN THE SAID CAUSE, STILL VERY MUCH PERSISTE D. 6. NONETHELESS, PARA 8 OF THE ORDER BEARS THE VIEW OF THE BENCH THAT THE COUNSEL IS NOT INTERESTED TO ARGUE THE MATTER A ND HE HAS BEEN SEEKING ADJOURNMENTS TIME AND AGAIN WITH A MOTIVE TO DELAY THE MATTER FOR REASONS BEST KNOWN TO HIM. 7. THIS VIEW OF THE BENCH, IS PER SE NOT CONSISTENT WITH THE BARE FACTS ON RECORD. IN PARA 2, PAGE 2 OF THE ORDER, THE BENC H ITSELF HAS NOTED THAT ON 6.12.2012, 21.1.2013, 04.03.2013 AND AGAIN ON 04 .03.2013, THE MATTE ADJOURNED AT THE REQUEST OF DR. IT IS ALSO NOTED TH AT ON 3.12.2012, THE CASE WAS ADJOURNED FOR 4.3.2013 ON REQUEST OF DR AN D THE BENCH DIRECTED THE DR TO PRODUCE ASSESSMENT RECORD. BUT ON 4.3.201 3, AGAIN THE CASE WAS ADJOURNED ON DR'S REQUEST FOR 15.4.2013 TO PROD UCE ASSESSMENT RECORDS. BUT ON 15.4.2013, THE BENCH DID NOT FUNCTI ON. 8. IT BEARS OUT WELL FROM THE ABOVE FACTS THAT AT LEAS T ON FOUR OCCASIONS, WHEN THE ID. DR SOUGHT ADJOURNMENT, THE ASSESSEE'S COUNSEL DID MAKE APPEARANCE WITH THE INTENTION TO ARGUE THE CASE. LIKEWISE, ON MA NO.18(ASR)/2014 3 THREE OCCASIONS, WHEN THE BENCH DID NOT FUNCTION, N OTHING WRONG COULD BE ATTRIBUTED TO THE ASSESSEE'S COUNSEL, WHILE ADJUDGI NG THE OVERALL DELAY IN DISPOSAL OF APPEAL. THEREFORE, NEITHER THE INFERENC E THAT ASSESSEE'S COUNSEL WAS NOT INTERESTED IN ARGUING THE CASE IS C ORRECT, NOR THAT THE DELAY IN DISPOSAL OF APPEAL FILED IN 2012, WAS ENTI RELY ATTRIBUTABLE TO ASSESSEE'S COUNSEL, SO AS TO ARTICULATE THE BENCH I N REJECTING THE REQUEST FOR ADJOURNMENT ON 20.05.2014 AND PASSING THE ORDER EX- PARTE ON 23.05.2014, ON THE PREMISE THAT IT WAS AN OLD CASE. RATHER, AS PER ITAT'S ORDER DISPLAYED ON NOTICE BOARD, IT WERE APPEALS FI LED IN 2010, WHICH WERE TO BE REFUSED ADJOURNMENT, BEING OLD CASES. 9. THERE IS ANOTHER IMPORTANT ASPECT WHICH THE BENC H CONVENIENTLY OVERLOOKED WHILE CLOSING THE HEARING ON 20.05.2014. AS MENTIONED HEREINABOVE IN PARA 7, APPRECIATING THE FACTS AND D ISPUTES INVOLVED, THE BENCH OF ITS OWN HAD DIRECTED THE DR ON TWO OCCASIO NS I.E. ON 04.03.2013 AND AGAIN ON 15.4.2013 TO PRODUCE ASSESSMENT RECORD . IT TRANSPIRES FROM THE IMPUGNED ORDER THAT THE ASSESSMENT RECORD WAS N OT PRODUCED EVEN TILL THE LAST DATE I.E. 20.05.2014. WHEN THE BENCH OF ITS OWN HAD CALLED FOR THE ASSESSMENT RECORD, AND ADJOURNED THE MATTER TWI CE TO COMPEL THE DR TO PRODUCE THE ASSESSMENT RECORD, IT IS HIGHLY INTR IGUING HOW THE CASE WAS TAKEN AS HEARD ON 20.5.2014, WHEN THE ASSESSMENT RE CORD WAS STILL NOT PRODUCED BY DR. CONVERSELY, IF THE ASSESSMENT RECOR D WAS NOT ESSENTIALLY NEEDED, THEN THE ADJOURNMENT ON EARLIER TWO OCCASIO NS, WHEN THE COUNSEL OF ASSESSEE APPEARED TO ARGUE THE CASE, BECOMES QUE STIONABLE. THEREFORE, EVEN ON THIS GROUND, IT WAS JUST AND PRO PER TO ADJOURN THE CASE FOR ANOTHER OCCASION, TO HAVE ACCESS TO ASSESSMENT RECORD, WHICH THE BENCH OF ITS OWN HAD DESIRED TWICE TO BE SEEN, TO R ESOLVE THE DISPUTES BROUGHT BEFORE IT. 10. AND ABOVE ALL, THE REASONS FOR SEEKING ADJOURNMENT ON 23 . 04.2014 AND AGAIN ON 20 . 05 . 2014 , WERE WELL STATED IN THE APPLICATION FILED WITH HON'BLE PRESIDENT ITAT BOMBAY ON 04.04.2014, A COPY OF WHICH WAS ALSO FILED WITH THE BENCH AT AMRITSAR. THEREFORE, THE IN FERENCE DRAWN IN PARA 8 OF THE ORDER THAT THE ASSESSEE'S COUNSEL WAS SEEKIN G ADJOURNMENTS TIME AND AGAIN FOR REASONS BEST KNOWN TO HIM, IS WHOLLY INCORRECT, WHEN THE BENCH HAS NOT DENIED THAT COPY OF APPLICATION DATED 04.04.2014 WAS NOT FILED WITH THE BENCH. 11. THEREFORE, IF THE FACTS AND CIRCUMSTANCES LEADI NG TO PASSING OF THE IMPUGNED ORDER ARE SEEN IN TOTALITY, THERE WERE SUF FICIENT, VALID AND COMPELLING REASONS FOR ASSESSEE'S COUNSEL TO SEEK A DJOURNMENT ON 20.05.2014 AND THEREFORE, DISMISSING THE ASSESSEE'S APPEAL EX-PARTE, VIDE ENCLOSED ORDERS DATED 23.05.2014, DESERVES TO BE RE CALLED FOR GRANTING AN MA NO.18(ASR)/2014 4 OPPORTUNITY OF HEARING TO ASSESSEE, THROUGH ITS COU NSEL, TO DO SUBSTANTIAL JUSTICE HITHERTO DENIED TO ASSESSEE. 12. THE ASSESSEE SEEKS TO RELY UPON THE DECISION OF RAJASTHAN HIGH IN MEHRU ELECTRICAL & ENGG. P LTD VS. CIT (2012)250 CTR (RAJ) 445, WHEREIN IT WAS HELD THAT WHERE THE COUNSEL FOR ASSESSEE HAD TO GO FOR SOME WORK TO JAIPUR AND AN APPLICATION FOR ADJOURNMENT WAS MO VED IN ADVANCE, THEN IN THE INTEREST OF JUSTICE, ADJOURNMENT WAS TO BE G RANTED AGAIN EVEN THOUGH EARLIER THE CASE WAS ADJOURNED BV THE TRIBUN AL BY GIVING LAST OPPORTUNITY TO COUNSEL FOR ASSESSEE. 13. RELEVANTLY, IN THE CASE OF CIT VS GHERULAL BAL CHAN D (2004) 269 ITR 386 (P&H), RECALLING OF EX-PARTE ORDER ON MERIT S, BY THE TRIBUNAL, WHERE THE ASSESSEE COULD NOT ATTEND FOR VALID REASO NS, AND SUBSEQUENT PASSING OF ORDER ON MERITS AFTER HEARING THE ASSESS EE, BY WAY OF RECTIFICATION, WAS HELD TO VALID AND NOT A REVIEW A T ALL. 14. WITHOUT PREJUDICE TO ABOVE, EVEN ON MERITS, WHI LE PASSING EX-PARTE ORDER, THE FOLLOWING TWO GROUNDS OF APPEAL HAVE NOT BEEN CONSIDERED AND DECIDED: GR. NO.4.1: THAT EVEN OTHERWISE, WHEN NO OTHER DIS CREPANCY BUT FOR UNDER VALUATION OF CLOSING OF THE PUMPS WAS ALLEGED BY AO, NO ADDITIONS BEYOND SUCH OTHER VALUATION OF CLOSING STOCK WAS WARRANTED. THE IMPUGNED GP ADDITION OF RS.20,81 ,520/- IS THEREFORE WHOLLY ILLEGAL. GR.NO.4.2: THAT VARIOUS JUDICIAL AUTHORITIES RELIED UPON LD. CIT(A) TO REJECT THE ASSESSEES CONTENTION AND UPHOLD THE IM PUGNED GP ADDITIONS, WITHOUT CONFRONTING TO ASSESSEE IS CO NTRARY TO BASIC POSTULATE OF NATURAL JUSTICE AND HENCE NOT SU STAINABLE. 15. APPRECIATING THE FACTS IN TOTALITY, THE ENCLOSE D ORDER DATED 23.05.2014 IS THEREFORE, HUMBLY PRAYED TO BE RECALL ED AND ASSESSEE'S APPEAL BE DISPOSED AFTER AFFORDING AN OPPORTUNITY O F BEING HEARD TO ASSESSEE. 3. THE LD. DR, ON THE OTHER HAND, RELIED UPON THE O RDER OF THE TRIBUNAL, DATED 23.05.2014. MA NO.18(ASR)/2014 5 4. WE HAVE HEARD BOTH THE PARTIES AND HAVE CAREFULL Y GONE THROUGH THE SUBMISSIONS RAISED BY THE ASSESSEE IN THE MISCE LLANEOUS APPLICATION. IT IS NOTED THAT THE ABOVE REFERRED TRIBUNAL ORDER WAS PASSED EX-PARTE QUA THE ASSESSEE. NOW THE ASSESSEE HAS SUBMITTED TH E REASONS FOR NON- APPEARANCE ON THAT DATE, BESIDES GROUND NOS. 4.1 & 4.2 HAVE NOT BEEN CONSIDERED AND DECIDED. WE ARE SATISFIED WITH THE S UFFICIENCY OF THE REASONS FOR ABSENCE ON THE SCHEDULED DATE OF HEARIN G. THEREFORE, IN THE INTEREST OF JUSTICE, WE RECALL THE TRIBUNALS ORDE R DATED 23.05.2014, PASSED IN ITA NO.120(ASR)/2012 FOR THE A.Y. 2008-09 AND FIX THE MAIN APPEAL FOR HEARING ON 02.05.2016. NO SEPARATE NOTICE BE ISSUED AS THE ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESE NCE OF BOTH THE PARTIES. 5. IN THE RESULT, THE MISC. APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/03/ 201 6. (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 11/03/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. SUBHASH CHANDER AGGARWAL, JALANDHA R. 2. THE DCIT. RANGE-II, JALANDHAR. 3. THE CIT(A), JALANDHAR. 4. THE CIT, JALANDHAR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR. MA NO.18(ASR)/2014 6