Shri kamal Raheja, legal heir of late Sri Chand, Kanpur V. Astt. Commissioner of Income Tax-III, Kanpur

MA 90/LKW/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3665 (ITAT-LUCKNOW)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 12-08-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NIDHI VERMA
• Keywords: Opportunity of being heard; Additional evidence
• Section: 142(1); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER M.A. NO.90/LKW/2015 [ARISING OUT OF ITA NO.555/LKW/2013] ASSESSMENT YEAR:2003-04 SHRI. KAMAL RAHEJA L/H OF LATE SRI CHAND 7/87, TILAK NAGAR, KANPUR V. ACIT-III KANPUR PAN:AIBJPR2102G (APPLICANT) (RESPONDENT) APPLICANT BY: SHRI. RAKESH GARG, ADVOCATE RESPONDENT BY: SMT. NIDHI VERMA, D.R DATE OF HEARING: 04 09 2015 DATE OF PRONOUNCEMENT: 30 10 2015 O R D E R PER SUNIL KUMAR YADAV: THIS MISCELLANEOUS APPLICATION IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL DATED 23.4.2015 IN I.T.A. NO. 555/LKW/2013 WITH THE SUBMISSION THAT WHILE ADJUDICATING THE APPEAL, THE TRIBUNAL HAS RECORDED CERTAIN INCORRECT FACTS IN ITS ORDER, THEREFORE, RECTIFICATION IS CALLED FOR IN THE ORDER OF THE TRIBUNAL. 2. THE LD. D.R., ON THE OTHER HAND, HAS SUBMITTED THAT WHILE ADJUDICATING THE APPEAL, THE TRIBUNAL HAS RECORDED IN ITS ORDER THAT CERTAIN FACTS ARE NOT PROPERLY VERIFIED BY THE ASSESSING OFFICER AS WELL AS THE LD. CIT(A), THEREFORE, THE MATTER WAS RESTORED TO THE ASSESSING OFFICER WITH A DIRECTION TO RE-ADJUDICATE THE ENTIRE ISSUE AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. D.R. HAS FURTHER CONTENDED THAT BEFORE THE ASSESSING OFFICER, THE ASSESSEE DID NOT APPEAR :- 2 -: AND REMAND REPORT COULD NOT BE FILED WITH RESPECT TO THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE BEFORE THE LD. CIT(A). THEREFORE, THE TRIBUNAL HAS TAKEN A CORRECT VIEW FOR RE-ADJUDICATION OF ISSUE AFRESH. 3. HAVING CAREFULLY EXAMINED THE MISCELLANEOUS APPLICATION VIS-A-VIS THE ORDER OF THE TRIBUNAL, WE FIND THAT WHATEVER ALLEGATION WITH REGARD TO THE FACTS ARE RAISED IN THIS APPLICATION, IT IS IN RESPECT OF THE SUBMISSIONS OF THE ASSESSEE AS WELL AS THE LD. D.R. IN THE ORDER. 4. SO FAR AS FACTS RECORDED IN THE ORDER IS CONCERNED, WE FIND THAT THE TRIBUNAL WAS OF THE VIEW THAT THE ISSUE WAS NOT PROPERLY EXAMINED EITHER BY THE ASSESSING OFFICER OR THE LD. CIT(A), AS CONTRARY FACTS WERE AVAILABLE ON RECORD. THEREFORE, THE TRIBUNAL HAS SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORED THE MATTER TO THE ASSESSING OFFICER WITH A DIRECTION TO RE-ADJUDICATE THE ISSUE AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. FOR THE SAKE OF REFERENCE, WE EXTRACT THE FINDINGS OF THE TRIBUNAL HEREUNDER:- 6. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT THE ASSESSING OFFICER HAS REOPENED THE ASSESSMENT ON THE BASIS OF THE AIR INFORMATION AND ISSUED NOTICE UNDER SECTION 148 OF THE ACT TO THE ASSESSEE, BUT THE ASSESSEE DID NOT RESPOND THE SAME. THEREAFTER NOTICES UNDER SECTION 142(1) OF THE ACT WERE ALSO ISSUED, BUT THE SAME WERE NOT COMPLIED BY THE ASSESSEE AND THE ASSESSING OFFICER HAD NO OTHER OPTION BUT TO MAKE THE ADDITION ON THE BASIS OF INFORMATION RECEIVED. BEFORE THE LD. CIT(A), THOUGH THE ASSESSEE HAS TOOK A PLEA THAT THE IMPUGNED PROPERTY I.E. PROPERTY NO.74/38, DHANKUTTI, KANPUR WAS NOT OWNED BY THE ASSESSEE AND THE SAME WAS ACTUALLY RENTED TO THE ASSESSEE; BUT NO EVIDENCE IN THIS REGARD HAS BEEN FILED BEFORE THE LD. CIT(A). IT IS ALSO OBVIOUS FROM THE RECORD THAT THOUGH THE LD. CIT(A) HAS AFFORDED VARIOUS OPPORTUNITIES TO THE ASSESSING OFFICER TO SUBMIT :- 3 -: THE REPORT, BUT THE REPORT WAS NOT SUBMITTED AND AS PER THE REVENUE, THE REPORT COULD NOT BE SUBMITTED ON ACCOUNT OF INVOLVEMENT OF THE ASSESSING OFFICER IN TIME-BARRING CASES AND THESE FACTS WERE WELL KNOWN TO THE LD. CIT(A) AND THE LD. CIT(A) SHOULD HAVE GRANTED SOME MORE TIME TO THE ASSESSING OFFICER TO SUBMIT HIS REPORT. 7. WE HAVE ALSO CAREFULLY EXAMINED THE LETTER WRITTEN BY THE DCIT DATED 1.9.2011 SEEKING CERTAIN DOCUMENTS FROM THE ASSESSEE AND IN RESPONSE THERETO, IT WAS CONTENDED BY THE ASSESSEE THAT THE PROPERTY WAS OWNED BY SHRI. NAVEEN KHANNA BUT BEFORE THE LD. CIT(A) IT WAS STATED THAT THE PROPERTY BELONGS TO SHRI. RAM CHANDRA JI, LAXMAN JI, JANKI JI, SHIV JI SERVKAR, SHIV NARAIN KHANNA SMT. KASHMIRI BIVI SAMALDAS AND SMT. DEV KALI BIVI W/O SHRI. SHIV NARAIN. THE LD. CIT(A) HAS NOT EXAMINED THE ACTUAL OWNERSHIP OF THE PROPERTY DURING THE COURSE OF APPELLATE PROCEEDINGS THOUGH HE IS ARMED WITH CO- TERMINUS POWER OF THAT OF THE ASSESSING OFFICER. THE LD. CIT(A) HAS NOT MENTIONED ANYWHERE IN HIS ORDER AS TO ON WHAT BASIS THE ASSESSING OFFICER HAS REOPENED THE ASSESSMENT. IT IS ALSO NOT CLEAR FROM THE ORDERS OF THE LOWER AUTHORITIES WHETHER THERE WAS ANY DEPOSIT IN THE ACCOUNTS OF THE ASSESSEE OR FROM WHERE THE ASSESSING OFFICER HAS GOT THE INFORMATION THAT THE INCOME HAS ESCAPED ASSESSMENT IN THE HANDS OF THE ASSESSEE. ALL THESE QUESTIONS ARE REMAINED UNANSWERED IN THIS MATTER. WE ARE, THEREFORE, OF THE VIEW THAT SINCE THE ISSUE WAS NOT PROPERLY ADJUDICATED BY THE LD. CIT(A) AND THE ASSESSING OFFICER, THE MATTER MAY BE RE-EXAMINED BY THE ASSESSING OFFICER IN THE INTEREST OF JUSTICE. WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO RE-ADJUDICATE THE ISSUE AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. :- 4 -: 5. SINCE NO ERROR APPARENT IS NOTICED IN THE ORDER OF THE TRIBUNAL, WE FIND NO MERIT IN THE MISCELLANEOUS APPLICATION OF THE ASSESSEE. WE ACCORDINGLY DISMISS THE SAME. 6. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE STANDS DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30 TH OCTOBER, 2015 JJ:0710 COPY FORWARDED TO: 1. APPLICANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR