M/s. Pardeep Singh Wazir,, Kashmir v. The Dy. Commissioner of Income-tax, Srinagar

ITA 3/ASR/2013 | 2007-2008
Pronouncement Date: 31-10-2013 | Result: Allowed

Appeal Details

RSA Number 320914 RSA 2013
Assessee PAN AAIFP4025E
Bench Amritsar
Appeal Number ITA 3/ASR/2013
Duration Of Justice 9 month(s) 29 day(s)
Appellant M/s. Pardeep Singh Wazir,, Kashmir
Respondent The Dy. Commissioner of Income-tax, Srinagar
Appeal Type Income Tax Appeal
Pronouncement Date 31-10-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 31-10-2013
Date Of Final Hearing 31-10-2013
Next Hearing Date 31-10-2013
Assessment Year 2007-2008
Appeal Filed On 02-01-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU JUDICIAL MEMBER AND SH. B.P. JAIN ACCOUNTANT MEMBER I.T.A. NO. 03(ASR)/2013 ASSESSMENT YEAR: 2007-08 PAN: AAIFP4025E M/S PARDEEP SINGH WAZIR VS. COMMISSIONER OF INCOME BABA RESHI ROAD KANLIBAGH TAX AAYAKAR BHA WAN RAIL BARAMULLA KASHMIR HEAD JAMMU (J&K) (APPELLANT) (RESPONDENT) APPELLANT BY: SH. S. SHABIR AHAMED MIR ADVOCATE RESPONDENT BY: SH. MAHAVIR SINGH SR.DR DATE OF HEARING: 31.10.2013 DATE OF PRONOUNCEMENT: 31.10.2013 ORDER PER BENCH 1. THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER DATED 21.03.2012 PASSED BY LEARNED COMMISSION ER OF INCOME-TAX (J&K) JAMMU UNDER SECTION 263 OF THE INCOME TAX A CT 1961 (IN SHORT THE ACT). 2 2. THE FACTS NARRATED BY THE REVENUE AUTHORITY ARE NOT DISPUTED BY BOTH THE PARTIES; THEREFORE THERE IS NO NEED TO REP EAT THE SAME FOR THE SAKE OF CONVENIENCE. 3. THE PRESENT APPEAL IS BARRED BY THE DELAY OF 213 DAYS AND THE ASSESSEE HAS FILED THE APPLICATION FOR CONDONATION OF DELAY DATED 28.12.2012 ACCOMPANYING WITH THE AFFIDAVIT IN WHIC H THE ASSESSEE HAS STATED THAT HE HAS FILED A WRIT PETITION UNDER ARTI CLE 226 OF THE CONSTITUTION OF INDIA READ WITH SECTION 103 OF THE CONSTITUTION OF JAMMU AND KASHMIR STATE BEFORE THE HON'BLE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR TITLED M/S PARDEEP SINGH WAZIR VS. UNI ON OF INDIAN & ORS. OWP NO. 402/2012 CMP NO. 641/2012 AND HE HAD TO GAT HER ALL THE RECORDS AND INFORMATION BACK FROM THE LAWYERS WHIC H CAUSED THE DELAY IN FILING THE APPEAL AND REQUESTED THAT THE AFORESA ID DELAY OF 213 DAYS MAY BE CONDONED. THE ASSESSEE HAS ALSO FILED THE AF FIDAVIT OF MS. SABEENA NAVEED (ADVOCATE) D/O- NAZIR AHMAD R/O-HM T ZAINAKOTE SRINAGAR J&K IN WHICH SHE HAS STATED THAT SHE WAS THE ADVOCATE ON THE ASSESSEE SIDE IN WRIT PETITION FILED BEFORE THE HON 'BLE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR TITLED M/S PARDEEP SI NGH WAZIR VS. UNION OF INDIAN & ORS. OWP NO. 402/2012 CMP NO. 64 1/2012. SHE 3 FURTHER STATED IN HER AFFIDAVIT THAT THE COURTS OR DER PASSED IN THE AFORESAID WRIT PETITION COMMUNICATED TO MR. PARDEED WAZIR ONLY AFTER OBTAINING THE CERTIFIED COPY FROM THE COURT REGISTR Y VIDE NO. 11016 DATED 05.11.2012 AND THE CERTIFIED COPY ALONG WITH CASE R ECORDS WAS HANDED OVER ON 08.11.2012 AT HER OFFICE CHAMBER NO. 20 SA DDER COURT SRINAGAR JAMMU AND KASHMIR. 4. ASSESSEE HAS ALSO FILED THE ATTESTED COPY OF THE ORDER DATED 06.08.2012 PASSED BY HON'BLE HIGH COURT OF JAMMU AN D KASHMIR AT SRINAGAR IN OWP NO. 402/2012 CMP NO. 641/2012 WHE REBY THE HON'BLE HIGH COURT DISMISSED THE WRIT PETITION FILE D BY THE ASSESSEE AND HELD THAT THE PERIOD SPENT BY THE PETITIONER AND THE ORDER PA SSED BY THIS COURT TODAY SHALL NOT COME IN HIS WAY FOR TAKING AP PROPRIATE REMEDY IF SO ADVISED AND IF HE SO CHOOSES. 5. AFTER DISMISSAL OF THE AFORESAID WRIT PETITION B Y HON'BLE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR THE ASSESSE E FILED THE PRESENT APPEAL WHICH IS COMPLETELY BARRED BY 213 DAYS. AT L AST THE ASSESSEE STATED THAT DUE TO THE AFORESAID CIRCUMSTANCES DEL AY IN FILING THE PRESENT APPEAL OCCURRED THEREFORE HE REQUESTED THAT THE S AME MAY BE CONDONED. 4 6. ON THE CONTRARY LEARNED DR STRONGLY OPPOSED THE REQUEST OF THE ASSESSEE FOR CONDONATION OF DELAY AND STATED THAT T HIS TYPE OF DELAY SHOULD NOT BE CONDONED AND IF THIS BENCH CONDONE SUCH DELA Y THAT WILL BECOME A BAD PRECEDENT. HE REQUESTED THAT APPEAL FILED BY TH E ASSESSEE MAY BE DISMISSED BEING TIME BARRED. 7. WE HAVE HEARD BOTH THE PARTIES ON THE ISSUE OF C ONDONATION OF DELAY AND ALSO PERUSED THE ORDER DATED 06.08.2012 P ASSED BY HON'BLE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR IN THE CASE OF M/S PARDEEP SINGH WAZIR VS. UNION OF INDIAN & ORS. OWP NO. 402/2012 CMP NO. 641/2012 WHICH WAS FILED BY THE APPELLANT/ ASSESSEE AGAINST THE ORDER DATED 21 ST MARCH 2012 PASSED BY RESPONDENT NO. 2 FORMING ANNEXURE P5 TO THE WRIT PETITION AND HAS SOUGHT ITS QUASHMENT ON THE GROUNDS TAKEN IN THE MEMO OF THE WRIT OF THE WRIT P ETITION. AFTER HEARING BOTH THE PARTIES HON'BLE HIGH COURT DISMISSED THE WRIT PETITION ALONG WITH CMP AND HELD THAT THE PERIOD SPENT BY THE PETI TIONER AND THE ORDER PASSED BY THIS COURT TODAY SHALL NOT COME IN HIS WA Y FOR TAKING APPROPRIATE REMEDY IF SO ADVISED AND IF HE SO CHOO SES. WE HAVE ALSO GONE THROUGH THE AFFIDAVIT FILED BY ONE MS. SABEENA NAVEED ADVOCATE WHO APPEARED FOR THE ASSESSEE BEFORE THE HON'BLE HI GH COURT IN THE 5 AFORESAID WRIT PETITION. IN THE AFFIDAVIT SHE HAS STATED THAT THE COURT ORDERS IN THE AFORESAID WRIT PETITION COMMUNICATED TO ASSESSEE MR. PARDEED WAZIR ONLY AFTER OBTAINING THE CERTIFIED CO PY FROM THE COURT REGISTRY VIDE NO. 11016 DATED 05.11.2012 AND THE CE RTIFIED COPY ALONG WITH CASE RECORDS WAS HANDED OVER ON 08.11.2012 AT HER OFFICE CHAMBER NO. 20 SADDER COURT SRINAGAR J&K. 8. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES EXPL AINED ABOVE WHICH IS SUPPORTED BY THE AFFIDAVIT OF COUNSEL WHO APPEARED BEFORE THE HON'BLE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR IN THE AFORESAID WRIT PETITION FILED BY THE ASSESSEE AS WELL AS THE ORDER DATED 06.08.2012 PASSED BY HON'BLE HIGH COURT OF JAMMU AND KASHMIR A T SRINAGAR IN THE WRIT PETITION FILED BY THE ASSESSEE THE DELAY OF 2 13 DAYS DESERVES TO BE CONDONED. ACCORDINGLY WE CONDONE THE DELAY OF 213 DAYS IN FILING THE PRESENT APPEAL AND ADMIT THE APPEAL FILED BY THE AS SESSEE FOR HEARING. 9. AS REGARDS TO THE MERIT OF THE CASE WE HAVE HEA RD BOTH THE PARTIES ON MERIT. LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THE COMMISSIONER OF INCOME-TAX (J&K) JAMMU HAS NOT GI VEN SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE ITS CLA IM AND HE PASSED THE IMPUGNED ORDER CONTRARY TO THE PRINCIPLE OF NATURE JUSTICE. HE REQUESTED 6 THAT THE IMPUGNED ORDER DATED 21.03.2012 MAY BE CAN CELLED AND THE ISSUE IN DISPUTE MAY BE SET ASIDE TO THE COMMISSIONER OF INCOME-TAX (J&K) JAMMU TO DECIDE THE SAME AFRESH UNDER THE LAW AND AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 10. ON THE CONTRARY LEARNED DR STATED THAT THE ASSE SSEE REMAINED NON-COOPERATIVE IN THE PROCEEDINGS BEFORE THE COMMI SSIONER OF INCOME- TAX (J&K) JAMMU AND IF THIS BENCH WANTS TO SET ASI DE THE MATTER TO THE COMMISSIONER OF INCOME-TAX (J&K) JAMMU THEN ASSES SEE MAY BE DIRECTED TO APPEAR BEFORE THE COMMISSIONER OF INCOM E-TAX (J&K) JAMMU ON A SPECIFIC DATE AND IT MAY ALSO BE DIRECTE D TO FULLY COOPERATE IN THE PROCEEDINGS UNDER SECTION 263 OF THE ACT BEFORE THE COMMISSIONER OF INCOME-TAX (J&K) JAMMU. 11. LEARNED COUNSEL FOR THE ASSESSEE SH. S. SHABIR AH AMED MIR UNDERTAKES TO APPEAR BEFORE COMMISSIONER OF INCOME- TAX (J&K) JAMMU IN THE PROCEEDING UNDER SECTION 263 OF THE A CT. HE ALSO UNDERTAKES THAT HE WILL NOT TAKE ANY UNNECESSARY AD JOURNMENTS. 12. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT MATERIALS AVAILABLE BEFORE US ESPECIALLY THE IMPUG NED ORDER PASSED BY COMMISSIONER OF INCOME-TAX (J&K) JAMMU DATED 21.0 3.2012 AND WE 7 ARE OF THE VIEW THAT COMMISSIONER OF INCOME-TAX (J& K) JAMMU HAS OBSERVED IN THE IMPUGNED ORDER THAT WHILE PASSING T HE ORDER UNDER SECTION 143(3) OF THE ACT THE ASSESSING OFFICER HA S NOT BROUGHT TO THE TAX THE AMOUNT OF RS. 45 45 731/- WHICH WAS REQUIRE D TO BE DISALLOWED UNDER SECTION 40A(3) OF THE ACT. ACCORDINGLY THE A SSESSING OFFICER ISSUED A SHOW-CAUSE NOTICE TO THE ASSESSEE VIDE LET TER DATED 07.03.2012 AT 11:00 AM DIRECTING IT TO APPEAR BEFORE HIM. BUR NEI THER ASSESSEE NOR ITS AUTHORIZED REPRESENTATIVE APPEARED BEFORE THE COMMI SSIONER OF INCOME- TAX (J&K) JAMMU AND THE LEARNED FIRST APPELLATE A UTHORITY HAS HELD THAT THE PROCEEDINGS UNDER SECTION 263 OF THE ACT W HICH IS GOING TO BE TIME BARRED ON 31.03.2012. THEREFORE NO OPTION WAS LEFT WITH HIM BUT TO DECIDE THE CASE ON MERIT ON THE BASIS OF RECORDS AV AILABLE ON FILE. ACCORDINGLY HE CANCELLED THE ORDER DATED 24.12.200 9 PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE ACT W ITH THE DIRECTION TO THE ASSESSING OFFICER TO PASS A FRESH ASSESSMENT OR DER AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE VIDE IMPUGNED ORDER DATED 21.03.2012 PASSED UNDER SECTION 263 OF THE ACT. 13. WE ARE OF THE VIEW THAT THE IMPUGNED ORDER IS C ONTRARY TO THE PRINCIPLES OF NATURE JUSTICE BECAUSE COMMISSION ER OF INCOME-TAX 8 (J&K) JAMMU HAS NOT GIVEN SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE ITS CLAIM BEFORE HIM. THEREFORE THE I MPUGNED ORDER IS NOT SUSTAINABLE IN THE EYE OF LAW AND WE CANCEL THE IMP UGNED ORDER DATED 21.03.2012 PASSED BY THE COMMISSIONER OF INCOME-TAX (J&K) JAMMU UNDER SECTION 263 OF THE ACT WITH A DIRECTION TO TH E COMMISSIONER OF INCOME-TAX (J&K) JAMMU TO GIVE ADEQUATE OPPORTUNI TY TO THE ASSESSEE TO REPLY THE SAME AND PRODUCE THE EVIDENCE SUPPORTI NG ITS CLAIM BY ISSUING A FRESH NOTICE TO THE ASSESSEE. 14. AS STATED ABOVE SH. S. SHABIR AHAMED MIR LEARN ED COUNSEL FOR THE ASSESSEE UNDERTAKES TO COOPERATE IN THE PROCEED INGS BEFORE THE COMMISSIONER OF INCOME-TAX (J&K) JAMMU AND WILL N OT SEEK ANY UNNECESSARY ADJOURNMENT. ACCORDINGLY WE DIRECT HIM TO APPEAR BEFORE THE COMMISSIONER OF INCOME-TAX (J&K) JAMMU ON 15. 11.2013 AND ATTEND THE PROCEEDINGS BEFORE THE COMMISSIONER OF I NCOME-TAX (J&K) JAMMU AND SEEK FURTHER NECESSARY INSTRUCTIONS FROM THE COMMISSIONER OF INCOME-TAX (J&K) JAMMU FOR THE DISPOSAL OF THE PROCEEDINGS UNDER SECTION 263 OF THE ACT.. 9 15. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT THEREFORE THERE IS NO NEED TO ISSUE NOTICES TO THE PARTIES. R EGISTRY IS DIRECTED TO SEND COPY OF THIS ORDER TO THE PARTIES IMMEDIATELY. 16. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST OCTOBER 2013 SD/./- SD/./- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 31 ST OCTOBER 2013 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: M/S PARDEEP SINGH WAZIR BABA RESHI R OAD KANLIBAGH BARAMULLA KASHMIR 2. COMMISSIONER OF INCOME TAX AAYAKAR BHAWAN RAIL HE AD JAMMU (J&K) 3. THE SR DR I.T.A.T. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH: AMRITSAR.