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Income Tax Appellate Tribunal, SMC, CHANDIGARH
Before: MS. DIVA SINGH
PER DIVA SINGH Both the appeals have been filed by the assessee assailing the correctness of the separate orders dated 01.01.2010 and 03.01.2010 of CIT(A)-3 Ludhiana pertaining to 2013-14 and 2014-15 assessment year and are being decided by way of common order for the sake of convenience. 2. Addressing ITA/362/CHD/2018, the ld. AR submitted that Ground No. 1 and 2 in the present appeal is identical in ITA 363/CHD/2018 and the arguments would remain identical. Referring to the impugned orders, it was his submission that the orders have been passed by the Ld. CIT(A)without addressing the legal position. Accordingly it was his limited prayer that the orders may be set aside for addressing the correct facts and law.
The Ld. DR on going through the respective findings of the Ld. CIT(A) which are identical in both the appeals stated that he had no objection to the said prayer.
I have heard the submission and perused the material available on record. Ground no. 1 & 2 of the assessee in the present appeals, it is
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noticed are identical in both the appeals. For the sake of convenience, the grounds from ITA 362/Chd/2018 are reproduced:
That Ld. CIT(A) has erred in confirming that the notice issued under section 148 of the ITA Act is valid on the reasons recorded when the same are not as per law. Hence relief be allowed. 2. That Ld. CIT(A) has erred in confirming the assessment without disposing of the objections filed against reasons recorded. The assessment is liable to be declared null & void. 3. That Ld. CIT(A) has erred in confirming the addition of Rs. 2,95,150/-on account of inspection charges when there is no evidence that the same was carried out. Otherwise also no expenditure has been allowed. Hence relief be allowed. 4.1. On a perusal of the record, it is evident that the assessee has challenged the re-opening on many grounds including the ground that the notice issued was illegal as it was without approval of the competent authority. Written submissions of the assessee have been extracted in pages 2 to 10 of the impugned order.The CIT(A) on facts, it is seen dismissed the argument holding as under :
“3.3 I have carefully considered rival submission. On the issue of legality of notice U/s 148,1 have gone through the submission of the appellant in detail and the case laws relied upon/ft is seen that the appellant has challenged the validity of notice U/s 148, as /the same has been issued without appropriate approval from the competent authority. However from the perusal of the written submission, it is seen that the assessee has not filed any evidence in this regard, as the appellant has not gone* for the inspection of the file and with evidence she has not been able to corborate the allegations.” (emphasis provided) 5. On a consideration of the issues, I am of the view that the above reasoning of the CIT(A) in dismissing assessee's objections cannot be accepted. When a challenge is posed by the tax payer that the notice is without approval of the Competent Authority in terms of the statutory mandate, then the adjudicating authority in the exercise of the powers fairly and impartially is required to call for the record and see whether the challenge on facts is correct or not. It goes without saying that in case the adjudicating authority on facts intends taking an adverse view, then it becomes incumbent on the Authority to confront the contrary fact/evidence to the taxpayer and after referring to the facts in the order, pass an order in accordance with law. Faulting the assessee for not filing the evidences qua the statutory procedure internally followed by the AO tantamounts to placing unnecessary obstacles for justice dispensation requiring the taxpayer to move for inspection of record and/or seek information invoking Right to Information etc. for seeking information
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which any way was required to be confronted to the assessee. It is nobody’s case that re-opening without following the Statutory Mandate is permissible. Once a challenge is posed that necessary approval in terms of the Statutory Mandate is not on record, the adjudicating authority is required to look into the record and pass an order after following the due procedures and address the grievance in accordance with law. The CIT(A) is not expected to place unnecessary obstacles and burden on the taxpayer by insisting that internal records of the tax authorities be first inspected. Said action cannot be condoned and such abdication of responsibility is not expected from the CIT(A) in the discharge of his duties i.e. u/s 250 of the Act. Accordingly in terms of the prayer of the parties before the Bench the impugned order is set aside in toto and the issues are remanded back to the file of the Ld. CIT(A) with a direction to first decide the assumption of jurisdiction and other legal issues and thereafter to proceed to decide the issue on merits if so warranted. The impugned order accordingly are set aside back to the file of Ld. CIT(A) with the above directions. 6. The assessee is directed to ensure full and proper participation. The said order is pronounced in the open Court at the time of hearing itself. 7. In the result, both the appeals of the Assessee are allowed for statistical purposes. Order Pronounced in the Open Court on 04.09.2018.
Sd/-
(DIVA SINGH) JUDICIAL MEMBER
AG/Poonam Copy to: The Appellant, The Respondent, The CIT, The CIT(A), The DR
Asstt. Registrar ITAT, Chandigarh