Mrs. Poonam Midha, Chandigarh vs Assessee

The D.C.I.T., Vs. Smt.Poonam Midha Central Circle I, # 3049, Sector 21-D, Chandigarh. Chandigarh. PAN: AEZPM1866P

Appellant by : Dr. Amarveer Singh, DR Respondent by : Shri N.K. Saini

ITA No. 653/Chd/2013 (Assessment Year : 2003-04)

ITA No. 654/Chd/2013 (Assessment Year : 2005-06)

ITA No. 655/Chd/2013 (Assessment Year : 2006-07)

ITA No. 656/Chd/2013 (Assessment Year : 2007-08)

ITA No. 657/Chd/2013 (Assessment Year : 2008-09)

And

ITA No. 658/Chd/2013 (Assessment Year : 2009-10)

Smt.Poonam Midha Vs. The D.C.I.T., # 3049, Sector 21-D, Central Circle I, Chandigarh. Chandigarh. PAN: AEZPM1866P

(Appellant) (Respondent) 2

Appellant by : Shri N.K. Saini Respondent by : Dr. Amarveer Singh, DR

Date of hearing : 11.02.2015 Date of Pronouncement : 12.02.2015

PER BHAVNESH SAINI, J.M. :

This order shall dispose off the departmental appeal as

well various appeals filed by the assessee against the common

order of the learned CIT (Appeals) (Central), Gurgaon dated

8.2.2013 for assessment years mentioned above i.e. 2003-04,

2005-06, 2006-07, 2007-08, 2008-09 and 2009-10.

2. In these cases, various grounds have been raised in the

appeals of the assessee and in the departmental appeal only

one ground is raised with regard to deletion of addition of

Rs.56 lacs on account of unexplained investment in flat in

Green Estate. The learned counsel for assessee submitted

that since assessment orders were framed on ex-parte basis

under section 153A r.w.s. 144 of the Act and appellate order

was also passed on ex-parte basis, therefore, the assessee

may be given one more chance to explain all the issues before

the Assessing Officer. He has submitted that in the identical

group cases of Shri Prem Lal Midha Vs. DCIT, Central Circle-I,

Chandigarh in ITA Nos.660 to 666/Chd/2013, the I.T.A.T.

Chandigarh Bench on identical facts vide order dated

9.12.2014 restored all the issues to the file of the Assessing

Officer with direction to redecide all the issues subject to cost 3

of Rs.10,000/- per appeal. The copy of the order dated

9.12.2014 is placed on record. He has, therefore, submitted

that these matters may also be restored to the file of the

Assessing Officer as is directed earlier above in the group

cases of Shri Prem Lal Midha (supra).

3. The learned D.R for the Revenue relied upon the orders of

the authorities below.

4. We have considered the rival submissions and found that

the issues raised in the departmental appeal as well as

assessee's appeal are identical as have been considered by the

I.T.A.T. Chandigarh Bench in the case Shri Prem Lal Midha

(supra) in which the Tribunal vide order dated 9.12.2014

restored all the matters to the file of the Assessing Officer

with direction to redecide all the issues subject to cost of

Rs.10,000/- per appeal.

5. The order of the Tribunal from para 1 to 7 is reproduced

as under :

"These appeals are directed against the order of Ld CIT(A), Chandigarh dated 8.2.2013.

2. In this group of cases various grounds have been raised but the Ld. Counsel for the assessee submitted that since assessment order was framed on exparte basis u/s 153A r.w.s. 144 of IT Act and the appellate orders were also passed on exparte basis. He submitted that on last date of hearing 20 days time was sought on behalf of the assessee which was not granted and thus the assessee has been deprived of opportunity of hearing, therefore the matter should be restored to the file of Assessing officer for re examination. The Ld. Counsel for the assessee also fairly admitted that in identical circumstances the Tribunal in case of U.T. Builders 4

& Promoters Ltd V DCIT in ITAs No. 667 to 673/Chd/2013 was pleased to set aside the order of the Ld. CIT(A) to the file of Assessing officer subject to payment of cost of Rs, 15,000 per appeal. However, since this is a case of individual director either the cost should be dropped or only nominal cost should be imposed.

3 On the other hand, the Ld. D.R for the revenue submitted that various opportunities have been granted by the Assessing officer as well as the Ld. CIT(A) but the assessee has miserably failed to attend the proceedings, therefore this issue should not be taken lightly because remanding of the matter would amount to wastage of precious time of authorities below.

4 We have considered the rival submissions carefully and find that search was conducted in the premises of the assessee and ultimately cases were transferred to the Central Circle. The assessee did not file any return in response to notice u/s 153A and therefore notices u/s 142(1) and 143(2) were issued by the Assessing officer. Hearing in assessment proceedings was fixed on various dates. Detail of which has been incorporated in the assessment order which is as under:

Sr Description of notice Date of Date fixed Gist of No issued issue of proceedings notice 1 Notice u/s 142(1) & 9.6.2010 28.6.2010 None appeared on 143(2) along with that date questionnaire 2 Notice u/s 142(1) & 1.9.2010 17.9.2010 None appellate-

143(2) along with eared on that date questionnaire 3 Notice u/s 142(1) 20.9.2010 20.9.2010 No appearance along with was made on this questionnaire date also neither any request for adjournment was made 4 Letter No. 1334 issued 14.10.2010 20.10.2010 Shri Prakshit for refixing the case Aggarwal, C.A appeared and filed Power of attorney. However, no replies to the questionnaires dated 9.6.2010, 1.9.2010 and 20.9.2010 were filed on this date. Case adjourned 8.11.2010 5

5 8.11.2010 None attended nor any written reply filed by the assessee. 6 Letter No. 1434 issued 8.11.2010 12.11.2010 None appeared on for refixing the case this date also nor any request for adjournment was made 7 12.11.2010 24.11.2010 Appearance was made by the assessee along with his counsel Shri Prikshit Aggarwal. But no reply filed by the assessee. Vide order sheet entry dated 24.11.2010, the assessee undertook to file replies to questionnaires within 7 days. However, no reply was filed.

Thereafter the assessment was completed on exparte basis u/s

153A r.w.s. 144 of IT Act.

5 The Ld. CIT(A) fixed the appeals vide notice dated 10.4.2012 for 7.5.2012 but none appeared on behalf of the assessee. Another notice was sent fixing the appeals on 21.5.2012 and the Assessing officer confirmed the services of this notice. In response an adjournment was sought for the month of June 2012 which was granted and the cases were fixed on 18.6.2012. On that date again an adjournment was sought and the cases were again fixed on 9.7.2012 & 13.8.2012 and against adjournments were sought.

Finally the cases were fixed for hearing giving the assessee a last opportunity on 20.9.2012 and the assessee was informed that no further extension of time would be entertained. Later on it was intimated that the Counsel for the assessee was changed. After the change of Counsel for the assessee from 27.11.2012 again the cases were adjourned on 19.12.2012, 17.1.2013 and 31.1.2013. On the last date of hearing an adjournment was sought through Fax message. The Ld. CIT(A) noted that no written reply or papers have been filed, therefore she proceeded to decide the appeals on exparte basis. The above clearly show that the assessee has been 6

totally un-cooperative and despite various opportunities, has not bothered to attend the proceedings.

6 We further find that in case of UT Builders & Promoters Ltd V DCIT (supra) keeping the principal of natural justice in view the assessee was given one last opportunity and the matters were remanded to the file of Assessing officer subject to payment of cost of Rs. 15,000/- per appeal. In this case also the Assessing officer gave various opportunities similar to the opportunities given in case of UT Builders & Promoters Ltd. (supra). Further the Ld. CIT(A) also gave various adjournments as given in the case of UT Builders & Promoters (supra) but the assessee remained totally uncooperative. Therefore we are of the opinion that considering the decision in case of UT Builders & Promoters (supra) and the fact that in this case the assessee is an individual, we set aside the order of Ld. CIT(A) and remand the matter back to the file of Assessing officer with a direction to adjudicate the issues after considering the submissions of the assessee subject to the condition that the assessee shall pay a cost of Rs. 10,000/- per appeal i.e. Rs. 70,000/0 (Rs. Seventy Thousand only) for all the appeals to the department. The cost shall be paid within a period of 30 days from the date of this order. The assessee is further directed to cooperate in the assessment proceedings before the Assessing officer and not to seek unnecessary adjournments. The Assessing officer should complete the assessments after considering the explanations /evidences produced before him by the assessee in accordance with law.

7. In the result, all the appeals of the assessee are allowed for

statistical purposes.

Order pronounced in the open court on 09.12.2014."

6. The dates of hearing and the ex-parte matters in the case

of the present assessee and in the case of Shri Prem Lal

Midha (supra) are identical. In the case of Shri Prem Lal

Midha (supra) the Tribunal also referred other group cases for

the purpose of restoring the matter to the file of the Assessing 7

Officer subject to cost. Therefore, the interest of justice

requires that this matter may also be restored to the file of

the Assessing Officer for adjudication afresh subject to cost

as already imposed in the case Shri Prem Lal Midha (supra).

It may also be noted here that in the departmental appeal the

Revenue challenged the deletion of addition of Rs.56 lacs

imposed on account of unexplained investment in flat in

Green Estate. The learned CIT (Appeals) in para 17.2 of the

impugned order has considered the submission of the assessee

that it was a double addition made in the hands of the

assessee. The learned CIT (Appeals) on perusing the

assessment order of Shri Prem Lal Midha (supra) found that

the same seized documents are the basis of addition of Rs.56

lacs. The contention of the assessee was found to be correct

and accordingly, the Assessing Officer was directed to delete

this addition as the same tantamounts to double addition as

the same has already been considered in the hands of Shri

Prem Lal Midha (supra). Since in the case of Shri Prem Lal

Midha (supra), the matter in issue has already been restored

to the file of the Assessing Officer, therefore, the learned

counsel for assessee has stated that this matter in the

departmental appeal may also be restored to the file of the

Assessing Officer for reconsideration alongwith similar issue

involved in the case of Shri Prem Lal Midha (supra).

7. Considering the order in the case of Shri Prem Lal Midha

(supra) and the explanation given by the learned counsel for

assessee above, we are of the view that all the matters require

reconsideration in the light of earlier order already passed on 8

identical facts in the case of Shri Prem Lal Midha (supra)

subject to cost. We accordingly, set aside the orders of the

authorities below and remand the entire matter back to the

file of the Assessing Officer with direction to adjudicate all

the issues after considering the submissions of the assessee

subject to condition that the assessee shall pay cost of

Rs.10,000/- per appeal i.e. Rs.60,000/- (Rupees sixty

thousands only) for all the appeals to the Department. The

cost shall be paid within a period of 30 days from the date of

this order. The assessee is further directed to cooperate with

the Assessing Officer for finalization of the assessments and

shall not seek unnecessary adjournment. The Assessing

Officer shall complete assessments after considering the

explanation/evidences produced before him by the assessee in

accordance with law.

8. In the result, all the appeals filed by the assessee and

departmental appeal are allowed for statistical purposes.

Order pronounced in the open court on this 12th day of

February, 2015.

Sd/- Sd/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER

Dated : 12 t h Februray, 2015

*Rati*

Copy to: The Appellant/The Respondent/The CIT(A)/The CIT/The DR.

Assistant Registrar, ITAT, Chandigarh