Sh. Rajbir Singh, Patiala v. ITO, Patiala

ITA 929/CHANDI/2011 | 2007-2008
Pronouncement Date: 21-11-2011 | Result: Allowed

Appeal Details

RSA Number 92921514 RSA 2011
Assessee PAN ACFPS0936A
Bench Chandigarh
Appeal Number ITA 929/CHANDI/2011
Duration Of Justice 2 month(s)
Appellant Sh. Rajbir Singh, Patiala
Respondent ITO, Patiala
Appeal Type Income Tax Appeal
Pronouncement Date 21-11-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 21-11-2011
Assessment Year 2007-2008
Appeal Filed On 20-09-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES A CHANDIGARH BEFORE SHRI H.L.KARWA HON'BLE VICE PRESIDENT AND SHRI D.K.SRIVASTAVA ACCOUNTANT MEMBER ITA NO. 929/CHD/2011 ASSESSMENT YEAR: 2007-08 SHRI RAJBIR SINGH VS THE ITO S/O SHRI KULWANT SINGH PROP. WARD-1 PATIALA PATIALA PAN NO. ACFPS 0936A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI H.R. SALDI RESPONDENT BY : SHRI AKHILESH GUPTA DATE OF HEARING : 17.11.2011 DATE OF PRONOUNCEMENT : 21.11.2011 ORDER PER H.L.KARWA VP THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF CIT(A) PATIALA DATED 28.12.2010 RELATING TO ASSESS MENT YEAR 2007-08. 2. IN HIS APPEAL THE ASSESSEE HAS TAKEN THE FOLLOW ING GROUNDS:- 1. THAT THE APPELLATE ORDER HAS BEEN PASSED WITHOUT SERVING ANY NOTICE UPON THE APPELLANT. 2. THAT WITHOUT PREJUDICE TO ABOVE THE LD. CIT(A) HAVE NOT DECIDED THE APPEAL ON MERITS. HE HAS NOT DISCUSSED THE GROUNDS OF APPEAL OF THE APPELLANT AND HAVE GIVEN N O FINDINGS ON THE GROUNDS OF APPEAL. 3. THAT WITHOUT PREJUDICE TO ABOVE THE ADDITIONS MADE ARE PURELY ON SURMISES AND CONJECTURE BASIS BY APPLYING ESTIMATED RATE OF 20.92% IN THE RETAIL TRADING OF T HE 2 APPELLANT WHICH IS HIGHLY EXCESSIVE AND THE ADDITI ON MADE AT RS. 3 68 703/- IS LIABLE TO BE DELETED. 4. THAT THE ADDITION OF RS. 15 000/- DEPOSIT IN THE BA NK TREATING IT AS UNEXPLAINED DEPOSIT IS AGAINST THE F ACTS OF THE CASE AS SUCH LIABLE TO BE DELETED. 5. THAT THE ADDITION OF RS. 55 253/- BY INVOKING PROVI SIONS OF SECTION 40A(3) IS ILLEGAL BAD IN LAW AND AGAINS T THE FACTS OF THE CASE AS SUCH IS LIABLE TO BE DELETED. 6. THAT THE APPELLANT CRAVES THE RIGHT TO ADD OR DELET E ANY GROUND OF APPEAL ON OR BEFORE OR DURING THE APPELLA TE PROCEEDINGS. 3. IN THIS CASE RETURN WAS FILED ON 28.7.2008 DECLA RING THEREIN NET INCOME OF RS. 99 800/- AGAINST WHICH THE ASSESSING OFFICER COMPLETED THE ASSESSMENT VIDE HIS ORDER DATED 23.12.2009 ON NET I NCOME OF RS. 5 28 760/-. IN ARRIVING AT THE ASSESSED INCOME H E HAD MADE AN ADDITION OF RS. 3 58 703/- ON ACCOUNT OF ALLEGED PROFIT EARN ED ON SALES MADE OUT OF THE BOOKS OF ACCOUNT. FURTHER CASH DEPOSIT OF RS. 15 000/- HAS BEEN TREATED AS UNEXPLAINED. DISALLOWANCE U/S 40A(3) OF THE ACT HAS ALSO BEEN MADE. 4. ON APPEAL THE CIT(A) DISMISSED THE APPEAL OF TH E ASSESSEE FOR NON PROSECUTION. THE CIT(A) HAS PLACED RELIANCE ON THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS B.N.BHA TTACHARJEE (1979) 118 ITR 461 (SC). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS. VIDE GROUN D NO.2 OF THE APPEAL THE ASSESSEE HAS SUBMITTED THAT CIT(A) HAS NOT DECIDED THE APPEAL ON MERITS. HE HAS NOT DISCUSSED ALL GROUNDS OF APP EAL OF THE ASSESSEE AND HAS GIVEN NO FINDINGS ON THE GROUNDS OF APPEAL RAIS ED BY THE ASSESSEE ON 3 MERITS. WE FIND THAT A SIMILAR ISSUE CAME UP FOR CONSIDERATION BEFORE ITAT AHMEDABAD BENCH C IN THE CASE OF GURJRAT T HEMIS BIOSYN LTD VS JCIT {2000) 74 ITD 339 (AHD). IN THAT CASE ALS O THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE FOR NON PROSEC UTION WITHOUT DECIDING THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ON MER ITS. IN THE ABOVE CASE THE TRIBUNAL HELD THAT PROVISIONS OF SECTION 250(6) OF THE INCOME TAX ACT 1961 (IN SHORT 'THE ACT') ARE MANDATORY AND IT IS O BLIGATORY FOR CIT(A) TO PASS A SPEAKING ORDER STATING POINTS RAISED IN THE APPEAL HIS DECISION THEREON AND REASONS FOR SUCH DECISION. THE RELEVAN T OBSERVATIONS OF THE TRIBUNAL ARE AS UNDER:- 3. WE HAVE CAREFULLY CONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS SUBMISSIONS MA DE BEFORE US. THE IMPUGNED ORDER PASSED BY THE CIT(A) IS CLEARLY VIOLATIVE OF THE EXPRESS PROVISIONS OF SECT ION 250(6) WHICH PROVIDES THAT THE APPELLATE ORDERS OF THE CIT(A) ARE TO STATE THE POINTS ARISING IN THE APPEA L THE DECISION OF THE AUTHORITY THEREON AND THE REASONS F OR SUCH DECISION. THE UNDERLYING RATIONALE OF THE PROVISIO N IS THAT SUCH ORDERS ARE SUBJECT TO FURTHER APPEAL TO THE AP PELLATE TRIBUNAL. SPEAKING ORDER WOULD OBVIOUSLY ENABLE A P ARTY TO KNOW PRECISE POINTS DECIDED IN HIS FAVOUR OR AGAINS T HIM. ABSENCE OF THE FORMULATION OF THE POINT FOR DECISIO N FOR WANT OF CLARITY IN A DECISION UNDOUBTEDLY PUTS A PA RTY IN QUANDARY. SECTION 250(6) EXPRESSLY EMBODIES THE PRI NCIPLES OF NATURAL JUSTICE AND SUCH A PROVISION IS CLEARLY MANDATORY IN NATURE. THE IMPUGNED ORDER PASSED BY T HE COMMISSIONER (APPEALS) IN VIOLATION OF THE PROVISIO NS OF SECTION 250(6) CANNOT THEREFORE BE SUSTAINED. RE GARDING THE DECISIONS OF THE DELHI BENCH OF THE TRIBUNAL IN MULTIPLAN INDIA (P.) LTD.'S CASE (SUPRA) CITED BY T HE LD. CIT(A) WE FIND THAT THE SAID DECISION IS CLEARLY DISTINGUISHABLE. SECTION 254 REFERRING TO THE ORDER S OF THE TRIBUNAL CONFERS PLENARY JURISDICTION ON THE TRIBUN AL IN THE MATTER OF PASSING ORDERS UNDER SECTION 254(1). THER E IS NO 4 SUCH EXPRESS STIPULATION IN SECTION 254 AS CONTAINE D UNDER THE PROVISIONS OF SECTION 250(6) RELATING TO THE OR DERS OF FIRST APPELLATE AUTHORITY. THEREFORE RELIANCE PLAC ED BY THE CIT(A) ON MULTIPLAN INDIA (P.) LTD.'S CASE (SUPRA) IS ENTIRELY MISPLACED. SIMILARLY THE CASE OF ESTATE O F LATE TUKOJIRAO HOLKAR (SUPRA) CITED BY THE LD. CIT(A) IS DISTINGUISHABLE AND DOES NOT SUPPORT THE VIEW TAKEN BY THE CIT(A). 4. FOR THE REASONS INDICATED ABOVE WE HEREBY SET A SIDE THE IMPUGNED ORDER OF THE CIT(A) AND DIRECT THE CIT(A) TO DISPOSE OF THE APPEAL OF THE ASSESSEE AFRESH AFTER ALLOWING PROPER OPPORTUNITY IN ACCORDANCE WITH LAW. 6. RESPECTFULLY FOLLOWING THE DECISION OF THE ITAT C BENCH AHMEDABAD IN THE CASE OF GUJARAT TEHMISIS BIOSYN LT D VS. JCIT (SUPRA) WE SET ASIDE THE ORDER OF CIT(A) IN TOTO AND DIRECT THE CIT(A) TO DECIDE THE APPEAL OF THE ASSESSEE AFRESH IN ACCORDANCE WIT H LAW AFTER ALLOWING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE CIT(A) IS ALSO DIRECTED TO DECIDE THE APPEAL OF THE ASSESSEE PREFE RABLY WITHIN THREE MONTHS FROM THE DATE OF RECEIPT OF THE ORDER. 7. FOR STATISTICAL PURPOSES THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 21 ST DAY OF NOVEMBER 2011. SD/- SD/- (D.K.SRIVASTAVA) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT DATED : 21 ST NOVEMBER 2011 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR