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Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC-I’ NEW DELHI
Before: SMT DIVA SINGH
The present appeal has been filed by the assessee assailing the correctness of the order dated 26.02.2016 of CIT(A)-19, New Delhi pertaining to 2008–09 assessment year on various grounds. However, at the time of hearing, the parties were heard only in respect of Ground No. 2 which reads as under:- 2. “On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in passing the order, without giving assessee a proper and adequate opportunity of being heard in clear violation of principle of natural justice.”
The relevant facts of the case are that the assessee returned an income of Rs.20,84,940/- on 13.10.2008. The said return was processed under section 143(1). The assessee was stated to be an individual engaged in the business of real estate and builder and had also disclosed income from business and profession and income from capital gain and income from other sources. The assessee was found to have made payments in cash for purchase of following lands. Accordingly notice under section 148 was issued to the assessee on 30.03.2013. Following specific lands were found to be purchased:- • Khasra No.279/8, Ugarsain Nagar, Rishikesh of rs.12,50,000 (above Rs.20000/-) in cash instead of cheque during FY 2007-08; and • Khasra No.279/8, Property No.123/1, Share Mauja, Rishikesh, Dehradoon of Rs.2,60,000/- (above Rs.20000/-) in cash instead of cheque during FY 2007-08.”
I.T.A .No.-1670/Del/2016 Girdhari lal Chawla vs ACIT
Page 2 of 4 2.1. As per record, the cash payments were justified as necessary payments as “Bayana” and it was explained that had the assessee not paid the amount in cash the deals would not have been finalized. It was submitted that the very nature of land transactions often required that in case of insistence of the other party the initial payment is often made in cash as it is not accepted by cheque. However, the said explanation was not found acceptable and addition of the said amount was made in the hands of the assessee.
The issue travelled in appeal before the CIT(A). Before the said Authority, fresh evidences by way of affidavit of Sh. Lalit Mohan Goel acknowledging the fact that the payment was made on Sunday on his insistence is stated to have been filed. This was remanded by the CIT(A) to the Assessing Officer. During the remand proceedings, the assessee initially did not appear however a letter was filed on 21.01.2016 requesting for certified copies of reasons recorded by the Assessing Officer at the time of reopening the assessment. Subsequently the assessee changed his counsel and again sought certified copy of reasons recorded. In the circumstances, the Assessing Officer was of the view that the assessee is only seeking adjournments and does not want to address the evidences. As a result of this, the addition was confirmed by the CIT(A).
In the aforesaid background, Ld. AR appearing on behalf of the assessee submitted that the impugned order has been passed without hearing the assessee. Addressing the non- representation on behalf of the assessee in the Remand proceedings, it was submitted that the earlier counsel of the assessee for whatever reasons did not appear and the assessee had to change his counsel. Accordingly, the impugned order it was submitted has been passed without hearing the assessee. It was his prayer that the issue may be set-aside in order to provide the assessee a reasonable opportunity of being heard. It is also his request that the assessee has been requesting for copy of reasons recorded for reopening the assessment and directions may be given to make the reasons available to the assessee.
The Ld. Sr.DR had no objection to the remand of the proceedings to the CIT(A) in order to afford an opportunity of being heard to the assessee. However, it was his submission that I.T.A .No.-1670/Del/2016 Girdhari lal Chawla vs ACIT
Page 3 of 4 the occasion to ask for the certified copy of reasons recorded does not arise as the issue is not before the CIT(A).
I have heard the rival submissions and the perused the material available on record.
Addressing first the request for issuing direction to the Revenue to make a copy of the reasons recorded available to the assessee, I am confident that the tax authorities are well-versed with the settled legal position that the jurisdictional issue can be raised by the assessee at any stage. In the afore-said settled legal position, I do not understand why the department is reluctant to make the copy of the certified reasons recorded available to the assessee. The Ld. CIT(A) is directed to provide the assessee certified copy of the reasons recorded for reopening the assessment.
6.1. Addressing the prayer in support of Ground No.2 raised in the present proceedings, I find on considering the record and in the light of the submissions of the parties before the Bench, the impugned order deserves to be set aside. It is seen from para 7 of the impugned order that the counsel representing the assessee was changed on 11.02.2016 and he again sought copy of reasons recorded. On the next date given i.e 25.02.2016, no compliance was found to have been made before the Assessing Officer in the remand proceedings. The impugned order is dated 26/02/2016. The fact that no compliance was made on 25.02.2016 in the remand proceedings could be a fact which could only be recorded at the earliest at the end of the day and presumably overnight was made available to the Ld.CIT(A) on the next working date i.e. 26.02.2016 on which date itself, the impugned order was passed. “The inordinate haste displayed by the department in the present proceedings gives truth and credence to the arguments advanced on behalf of the assessee that the order was passed without hearing the assessee. In the face of this blatant self evident perversity on record, the impugned order is set aside in order to afford opportunity to the Revenue to address the said deficiency.” The issue accordingly is restored back to the file of the CIT(A) with a direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. I.T.A .No.-1670/Del/2016 Girdhari lal Chawla vs ACIT