Jaswant Singh Mann, Huf, Chandigarh vs Assessee

Jaswant Singh Mann HUF Vs. The I.T.O, H.No. 266,Sector 35-A Ward 4(4) Chandigarh Chandigarh

PAN No. ANCPK1655K

(Appellant) (Respondent)

Appellant By : Shri A.K. Jindal Respondent By : Shri Manjit Singh

Date of hearing : 19/05/2014 Date of Pronouncement : 21.05.2014

ORDER

PER T.R.SOOD, A.M.

This is an appeal filed by the assessee against the order dated 31/12/2013

of C IT(Appeals), Chandigarh

2. In this appeal the assessee has raised the following grounds:-

1. That the Ld. CIT(A) is not justified in upholding the addition of Rs. 88,97,365/- merely on the ground that the appellant has not raised any additional ground of appeal as permitted by ITAT.

2. That the Ld. CIT(A) is not justified in restoring the addition of Rs. 88,97,365/- made by A.O. though accepting the order of CIT(A) dt. 28.01.2010 in favour of assessee on various issues which led to impugned addition.

2 3. That the Ld. CIT(A) is not justified in recording inconsistent finding by holding that findings of earlier CIT(A)are correct and at the same time rejecting the relief allowed by earlier CIT(A).

4. That the Ld. CIT(A) is not justified in upholding the addition without considering the arguments raised and orders passed u/s 143 (3) in the case of appellant for earlier years accepting the agricultural income as declared and hence the order of A.O. & CIT(A) are bad in law on the principle of consistency.

3. After hearing both the parties we find that in this case assessee has

declared certain agricultural income and onl y a small part was accepted as

agriculture income and balance was added to the income of the assessee as

income from other sources. When the assessee filed appeal before C IT(A), the

assessee was allowed relief by accepting the whole agricultural income. The

Revenue filed appeal before the Tribunal and the Tribunal in ITA No.

1168/Chd/2010 had adjudicated the issue vide paras 5 to 7, which are as under:-

"5. On perusal of the record and the orders of the Assessing Officer and CIT (Appeals) we find that the addition made in the present case was totaling Rs.88,97,365/-. The assessee had raised grounds of appeal Nos. 1 to 9 before the CIT (Appeals) which are incorporated under para 2 at pages 2 to 4 of the appellate order and the same are not being reproduced for the sake of brevity. The perusal of the said grounds of appeal raised by the assessee before the CIT (Appeals) reflects the said grounds of appeal being argumentative and were in the form of submission of the assessee on various aspects of the assessment made in the hands of the assessee. The assessee had failed to raise specific ground of appeal against the addition of Rs.88,97,365/-.

3 6. The learned A.R. for the assessee had fairly admitted to the above said omission. The CIT (Appeals) proceeded to dispose of the appeal by observing vide para 4 as under:

"4. Since the grounds are not very specific, I would address the issues taken up on the assessment order which led to the addition of Rs.8897365."

7. In the absence of specific ground of appeal raised by the assessee and in view of the admission of the learned A.R. for the assessee we deem it fit to restore the issue back to the file of the CIT (Appeals) to adjudicate the issues raised by the assessee which are against the non-compliance of procedure under section 142(3) of the Act and the reliance on various affidavits etc. The assessee is at liberty to raise any additional ground of appeal if so advised. The CIT (Appeals) shall decide the appeal de-novo in accordance with law after giving reasonable opportunity of hearing to the assessee. The ground No.1 raised by the Revenue is thus allowed for statistical purposes. We are not addressing the issue on the merits of deletion made by the CIT (Appeals)."

4. When the matter was taken up in the fresh appellate proceedings by the

CIT(A), the Ld. Representative of the assessee filed a letter in which inter alia

contained following submission:-

"That we reiterate the submissions / replies made earlier before this Court, when this appeal came up for hearing before this Court and on later hearings, till this appeal was decided for the first time by this Court. We are re-submitting the copy of the principal submissions submitted earlier before this court. We have nothing more, than the earlier submissions, to say."

5. On the basis of above submissions, the Ld. C IT(A) observed that since

assessee has nothing more to say than his earlier submissions, therefore,

position remains that same ground remained before him as was before his

predecessor and, therefore, no relief could be given in the absence of any

specific ground. Accordingl y, he rejected the appeal of the assessee. 4

6. In the present appeal before us, Ld. counsel for the assessee submitted

that in fact the counsel of the assessee got a wrong impression during the

hearing of the appeal before C IT(A) that appeal was being allowed and that is

why he gave the submissions noted by Ld. C IT(A). He filed a copy of letter

which was filed before CIT(A) and pointed out that last line containing "We

have nothing more than the earlier submission to say" was added at the last

minute when the counsel entertained the impression that appeal was being

allowed. An affidavit has also been filed in this respect. He contended that this

impression was entertained because in the earlier round the assessee was

successful before CIT(A). Moreover the counsel who appeared before the

CIT(A) is not regularl y dealing with the tax matters so he cannot understand the

importance of raising the appropriate grounds. Therefore, in the interest of

justice the matter should be restored to the file of Assessing Officer for taking

appropriate grounds.

7. On the other hand, the Ld. DR supported the order of CIT(A).

8. We have considered the rival submissions carefull y. The affidavit of the

assessee reads as under:-

"Affidavit ........

That the appeal of my HUF for the Assessment years 2007-08 were represented by my previous counsels Sh. Ajay Jagga Advocate before the Hon'ble ITAT and Sh. Ajay Jagga Advocate and Sh. Sanjay Arora CA before the Hon'ble CIT Appeals, Chandigarh.

That the first appeal was decided in my favour and thereafter the Department filed an appeal before the Hon'ble ITAT, Chandigarh, which was remanded back to the Hon'ble CIT Appeals, Chandigarh, for deciding the matter afresh, by adjudicating the issues raised which are against the non compliance of procedure under section 142(3) and the reliance on various affidavits etc. We were also given the liberty to raise any additional grounds of 5

appeals, if so advised. (Para 7 of the order of Hon'ble ITAT). It was also mentioned that the CIT(Appeals) shall decide the appeal de novo in accordance with Law after giving reasonable opportunity.

That during hearing on 30.12.2013, we relied upon the submissions made earlier at the first instance, which included non following of the procedure u/s 142(3) of the Income Tax Act, reliance on affidavits. That no additional ground of appeal was filed before CIT Appeal as my Counsel during discussion with Hon'ble CIT Appeal got the impression that appeal is being disposed off immediately without any further requirement as all the grounds of appeal are already on record. The matter was not decided de-novo by CIT Appeals as directed by ITAT but the appeal was rejected on the technical ground"s. ...."

8. The above makes it clear that assessee did not file any fresh ground under

the wrong impression. We are of the opinion that justice cannot be denied on

technical ground, therefore, in the interest of justice we set aside the order of

Ld. C IT(A) and remit the matter back to his file for reexamination of the issue

after providing proper opportunit y to the assessee for raising appropriate

ground, if any. The assessee is also directed to the careful while making his

representation before the Ld. C IT(A).

9. In the result, the appeal is allowed for statistical purposes.

Order Pronounced in the Open Court on 21.05.2014.

Sd/- Sd/- (SUSHMA CHOWLA) (T.R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMER Dated : 21 s t May, 2014 Rkk Copy to: 1. The Appellant 2. The Respondent 3. The CIT 4. The CIT(A) 5. The DR 6