RAJENDRA KUMAR SHARMA, Jaipur V. JCIT, Jaipur

MA 138/JPR/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5439 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 06-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROSHANTA MEENA JCIT DHK
• Keywords: Principle of natural justice

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM M.A. NO. 138/JP/2016 ARISING OUT IF ITA NO. 358 & 375/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12. SHRI RAJENDRA KUMAR SHARMA, E - 36 - B, VIJAI NAGAR, MURLIPURA, SIKAR ROAD, JAIPUR. CUKE VS. THE JOINT COMMISSIONER OF INCOME-TAX, RANGE-4, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AASPS 9241 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI GIRISH DAVE (CA) JKTLO DH VKSJ LS@ REVENUE BY : SMT. ROSHANTA MEENA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 10.02.2017 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 08.03.2017 VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE ARIS E OUT OF THE ORDER OF THE TRIBUNAL IN ITA NO. 358 & 375/JP/2014 SEEKING RECTI FICATION OF THE ORDER DATED 27.04.2016. THE LD. COUNSEL FOR THE ASSESSEE REITE RATED THE SUBMISSION AS MADE IN THE APPLICATION. THE RELEVANT CONTENTS OF THE APPL ICATION ARE REPRODUCED AS UNDER:- (I) PRAYER FOR ADMISSION OF ADDITIONAL GROUND SUBMITTE D VIDE APPLICATION DATED 09.03.2016. (COPY OF THE REQUEST LETTER IS SU BMITTED FOR READY REFERENCE). WHILE DECIDING THE APPEAL, ADDITIONAL G ROUND TAKEN BY THE HUMBLE APPELLANT, WHICH GOES TO THE ROOT OF THE APP EAL, HAS NOT BEEN CONSIDERED. HAD THAT GROUND BEEN DECIDED IN FAVOUR OF THE APPELLANT- ASSESSEE, THE ENTIRE ASSESSMENT WOULD HAVE BEEN TRE ATED AS NON-EST. IN THE PROCESS, THE VARIOUS CONTENTIONS DULY SUPPORTED BY VARIOUS JUDICIAL PRONOUNCEMENTS AS DISCUSSED IN THE ADDITIONAL GROUN D HAVE NOT BEEN DELIBERATED AND ADJUDICATE IN PROPER PERSPECTIVE. IN FACT, IN THE COURSE OF HEARING OF THE APPEAL, KIND ATTENTION OF THE HONBL E BENCH WAS PARTICULARLY INVITED TO THE FACTS AND CIRCUMSTANCES LEADING TO T HIS GROUND. IN ABSENCE OF SPECIFIC FINDINGS ON THIS POINT, THE MAIN POINTS AT ISSUE COULD NOT BE DECIDED LOGICALLY AND REASONABLY . 2 MA NO. 138/JP/2016 SHRI RAJENDRA KUMAR SHARMA (II) ON PERUSAL OF SUCH ADDITIONAL GROUND, IT WOULD BE S EEN THAT THE FIRST ADDITIONAL GROUND RELATED TO THE FINDINGS OF LD. CI T(A) ON THE BASIS OF INSPECTORS REPORT DATED 13.3.2014. THE SAID REPOR T HAD BEEN RELIED UPON BY HE ASSESSING OFFICER WITHOUT PROVIDING ANY OPPOR TUNITY TO THE APPELLANT AND LD. CIT (A) ALSO REFERRED TO IT WITHOUT ALLOWIN G AN OPPORTUNITY TO THE APPELLANT TO CROSS EXAMINE THE WITNESS ON THE POINT . THIS BEING CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE AND EQUITY IT WAS PRAYED IN THE ADDITIONAL GROUND THAT THE ASSESSMENT ORDER ITSELF DESERVED TO BE QUASHED ANNULLED. NO ADVERSE VIEW ON THE BASIS OF THE MATERIAL COLLEC TED AT THE BACK OF THE APPELLANT COULD BE DRAW. WHEN ON LOOKS AT THE TIMING AND OTHER ATTENDANT CIRCUMSTANCES RELATING T O THE REPORT DRAWN& PREPARED BY THE INSPECTOR, THE ENTIRE REPORT DESERV ES TO BE DISBELIEVED AND REJECTED. THE PRESENT APPEAL ORDER DOES NOT DEAL WITH THIS ISSUE. (III) ANOTHER APPARENT ERROR WHICH HAS CREPT IN THE ORD ER OF HONBLE BENCH IS THAT THE APPEAL PREFERRED BY THE APPELLANT-ASSESSEE HAS BEEN DISMISSED SOLELY ON THE PLEA THAT THE GENUINENESS OF THE AGREEMENT DATED 2.06.2011 WAS QUESTIONABLE THE VERACITY OF WHICH WAS NEVER AN ISSUE BEFORE, OR UNDER CHALLENGE BY, BOTH THE AUTHORITIES BELOW. THIS WAS NEVER THE CASE OF THE DEPARTMENT AND WAS NEVER SO ARGUED BY AND ON BEHALF ON THE DEPARTMENT. THE SUSPICION AROUND THE AGREEMENT HAS BEEN CAST FOR THE FIRST TIME BY THE HONBLE BENCH AND THEIR FINDI NG IN THIS REGARD HAS BEEN SUPPORTED BY A JUDGMENT OF HONBLE APEX COURT. NEITHER THE FACTS NOR THE JUDGMENT WHICH HAVE BEEN STATED IN THE ORDE R OF HONBLE BENCH IN ORDER TO DRAW ADVERSE INFERENCE AGAINST THE APPELLA NT-ASSESSEE WERE EVER PUT OR EXPLANATION. (IV) IN THE PROCESS, HONBLE BENCH DID NOT CONSIDER THE IMPLICATION OF SUCH IMPROPER FINDINGS OF LD. CIT(A) AS RECORDED IN PARA NO. 4.5.3 AT PAGE NO. 12 OF THE APPEAL ORDER WHICH CARRIED NO BEARING EFFECT IN THE ABSENCE OF CROSS-EXAMINATION OF THE WITNESS UNDER C ONSIDERATION. NOR AN OPPORTUNITY WAS PROVIDED TO THE APPELLANT-AS SESSEE TO EXPLAIN THE FACTS AND CIRCUMSTANCES CONTAINED IN TH E REPORT OF THE INSPECTOR. TO THIS EXTENT, THE FINDINGS ARRIVED AT BY THE HONBLE MEMBERS SOLELY ON THE BASIS OF AN ALLEGEDLY QUESTIO NABLE AGREEMENT DATED 2.6.2011 ARE NOT WELL-REASONED. THE SAME DESERVES TO BE RECONSIDERED IN THE LIGHT OF THE RES ULTS OF THECROSS- EXAMINATION OF THE WITNESS UNDER CONSIDERATION AND AN OPPORTUNITY NEED TO BE PROVIDED TO THE APPELLANT-AS SESSEE TO EXPLAIN THE FACTS AND CIRCUMSTANCES WHICH FOR THE F IRST TIME HAVE BEEN ADVERTED UPON IN THE ORDER OF HONBLE BENCH AS AN IRREPARABLE DAMAGE HAS RESULTED FORM THE DECISION O F HONBLE BENCH . 3 MA NO. 138/JP/2016 SHRI RAJENDRA KUMAR SHARMA (V) WHILE RELYING ON THE JUDGMENT IN THE CASE OF NAREND RA MOHAN UNIYAL (SUPRA), THE LD. CIT (A) HAD MISINTERPRETED THE MEA NING OF LAND APPURTENANT TO THE BUILDING ON WHIMSICAL PLEAS IN PARA 4.5.1 AT PAGE NO. 11 OF THE APPEAL ORDER. SUCH INTERPRETATI ON A PROPOUNDED BY THE LD. CIT(A) DOES NOT HOLD GOOD FRO M OBVIOUS REASONS. ACCORDINGLY, THE APPELLANT HAD DISPUTED S UCH INTERPRETATION VEHEMENTLY VIDE ADDITIONAL GROUND NO . 2. THE LEARNED MEMBERS DID NOT DWELL UPON SUCH GROUND, AND DID NOT GIVE SPECIFIC FINDING REGARDING DEFINITION OF LAND AP PURTENANT TO THE BUILDING AS PROPOUNDED BY THE LD. CIT(A). IN THE CIRCUMSTAN CES, THE APPEAL ORDER IS NON-SPEAKING AND IS NOT A WELL-REASONED ORDER. IN THE LIGHT OF ABOVE DISCUSSION, YOUR HONORS WOULD APPRECIATE THAT IN THE INTEREST OF EQUITY AND NATURAL JUSTICE , IT WOULD BE IN THE FITNESS OF THINGS, I THE ABOVE APPEAL ORDER IS RE-CALLED TO RECONSIDER T HE ABOVE OMITTED FACTS AND POINTS AT ISSUE. THE HUMBLE APPELLANT-ASSESSEE THER EFORE PRAYS THAT AN OPPORTUNITY MAY KINDLY BE PROVIDED TO EXPLAIN THE N EW ISSUES DISCUSSED IN THE ORDER OF HONBLE BENCH AND THE ADDITIONAL GROUND BE ALLOWED TO BE ARGUED AFRESH. APPELLANT-ASSESSEE WOULD BE GRATEFUL FOR T HIS ACT O KINDNESS AND SEEKS LEAVE TO LEAD JUDGMENTS IN SUPPORT OF THIS APPLICAT ION AND THE ISSUES INVOLVED IN THE APPEAL. 2. THE LD. COUNSEL, HOWEVER, SUBMITTED THAT NON-ADJ UDICATION OF THE ADDITIONAL GROUND IS AN APPARENT MISTAKE FROM THE RECORD. HE D REW OUR ATTENTION TO THE TRIBUNALS ORDERS TO THE MISTAKE THAT THERE IS NO W HISPER OF ADDITIONAL GROUND AS THE APPLICANT HAD MADE SPECIFIC REQUEST VIDE APPLICATIO N DATED 8/3/2016. FURTHER, HE SUBMITTED THAT ANOTHER APPARENT MISTAKE WHICH IS CR EPT IN THE ORDER OF THE TRIBUNAL IS THAT THE APPEAL PREFERRED BY THE ASSESSEE HAS BE EN DISMISSED SOLELY ON THE PLEA THAT THE GENUINENESS OF THE AGREEMENT DATED 2/6/201 1 WAS QUESTIONABLE, THE VERACITY OF WHICH WAS NEVER AN ISSUE BEFORE OR UNDE R CHALLENGE BY BOTH THE AUTHORITIES BELOW. IT IS SUBMITTED THAT THIS WAS NE VER THE CASE OF THE DEPARTMENT AND NEVER SO ARGUED BY ON BEHALF OF THE DEPARTMENT. THE AGREEMENT HAS BEEN 4 MA NO. 138/JP/2016 SHRI RAJENDRA KUMAR SHARMA DOUBTED FIRST TIME BY THE TRIBUNAL. THE ASSESSEE W AS NOT GIVEN AN OPPORTUNITY FOR EXPLAINING THE ISSUE. 2.1. ON THE CONTRARY, THE LD. DEPARTMENTAL REPRESEN TATIVE OPPOSED THE SUBMISSIONS AS MADE BY THE LD. COUNSEL FOR THE ASSE SSEE AND SUBMITTED THAT THERE IS NO APPARENT MISTAKE FROM THE RECORD. THE ASSESS EE IS TRYING TO SEEK REVIEW OF THE ORDER. 2.2. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE MATERIAL AVAILABLE RECORD. WE FIND THAT THERE IS AN APPLICATION DATED 9/3/2016 PRAYING THEREIN FOR ADMISSION OF ADDITIONAL GROUNDS OF APPEAL. WE FIND THAT AS PER ORDER SHEET DATED 30/3/2016, THERE IS NO MENTION OF ADDITIONAL GROUND EVEN IN THE ORDER SOUGHT TO BE RECTIFIED. THERE IS NO MENTION OF SUCH ADDITIONAL GROUNDS. IT IS CONTENDED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THESE GROUNDS WERE RA ISED BEFORE THE BENCH. HOWEVER, THE SAME WERE NOT ADJUDICATED. AFTER CONS IDERING THE TOTALITY OF FACTS AND IN THE INTEREST OF JUSTICE, WE RECALL OUR ORDER DAT ED 27/4/2016 TO THE EXTENT OF ADMISSION OF ADDITIONAL GROUNDS. THEREFORE, THE AP PEAL IS TO BE FIXED FOR HEARING FOR ADMISSION OF ADDITIONAL GROUNDS. IT APPEARS THAT I NADVERTENTLY, THERE IS NO MENTIONING OF ADDITIONAL GROUNDS. THEREFORE, THIS IS AN APPARENT MISTAKE FROM THE RECORD REQUIRES RECTIFICATION. THE APPLICATION IS D ISPOSED OF AS INDICATED ABOVE. 3. IN THE RESULT, MISCELLANEOUS APPLICATION IS ALLO WED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 08 / 03/2017. SD/- SD/- FOE FLAG ;KNO] ( DQY HKKJR ) ( VIKRAM SINGH YADAV) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 08/03/2017. 5 MA NO. 138/JP/2016 SHRI RAJENDRA KUMAR SHARMA POOJA- VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI RAJENDRA KUMAR SHARMA, JAIP UR. 2. THE RESPONDENT- THE JOINT COMMISSIONER OF INCOME -TAX, RANGE-4. JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (M.A. 138/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR