Income Tax Appellate Tribunal - Jaipur
Rajendra Kumar Sharma, Jaipur vs Jcit, Jaipur on 8 March, 2017
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YADAV, AM
M.A. No. 138/JP/2016
Arising out if ITA No. 358 & 375/JP/2015
fu/kZkj.k o"kZ@Assessment Year : 2011-12.
Shri Rajendra Kumar Sharma, E-36-B, cuke The Joint Commissioner of
Vijai Nagar, Murlipura, Sikar Road, Vs. Income-tax, Range-4,
Jaipur. Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN No. AASPS 9241 F
vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrh dh vksj ls@ Assessee by : Shri Girish Dave (CA)
jktLo dh vksj ls@ Revenue by : Smt. Roshanta Meena (JCIT)
lquokbZ dh rkjh[k@ Date of Hearing : 10.02.2017
?kks"k.kk dh rkjh[k@ Date of Pronouncement : 08.03.2017
vkns'k@ ORDER
PER SHRI KUL BHARAT, JM.
This Miscellaneous Application by the assessee arise out of the order of the Tribunal in ITA No. 358 & 375/JP/2014 seeking rectification of the order dated 27.04.2016. The Ld. Counsel for the assessee reiterated the submission as made in the application. The relevant contents of the application are reproduced as under:-
(i) "Prayer for admission of Additional Ground submitted vide application dated 09.03.2016. (copy of the request letter is submitted for ready reference). While deciding the appeal, additional ground taken by the humble appellant, which goes to the root of the appeal, has not been considered. Had that ground been decided in favour of the appellant-
assessee, the entire assessment would have been treated as non-est. In the process, the various contentions duly supported by various judicial pronouncements as discussed in the additional ground have not been deliberated and adjudicate in proper perspective. In fact, in the course of hearing of the appeal, kind attention of the Hon'ble Bench was particularly invited to the facts and circumstances leading to this ground. In absence of specific findings on this point, the main points at issue could not be decided 'logically' and 'reasonably'.
2 MA No. 138/JP/2016Shri Rajendra Kumar Sharma
(ii) On perusal of such additional ground, it would be seen that the first additional ground related to the findings of ld. CIT(A) on the basis of Inspector's report dated 13.3.2014. The said report had been relied upon by he assessing officer without providing any opportunity to the appellant and ld. CIT (A) also referred to it without allowing an opportunity to the appellant to cross examine the witness on the point. This being contrary to the principles of 'natural justice' and 'equity' it was prayed in the additional ground that the assessment order itself deserved to be quashed annulled. No adverse view on the basis of the material collected at the back of the appellant could be draw. When on looks at the timing and other attendant circumstances relating to the report drawn& prepared by the Inspector, the entire report deserves to be disbelieved and rejected. The present appeal order does not deal with this issue.
(iii) Another 'apparent' error which has crept in the order of Hon'ble Bench is that the appeal preferred by the appellant-assessee has been dismissed 'solely' on the plea that the genuineness of the agreement dated 2.06.2011 was 'questionable' the veracity of which was never an issue before, or under challenge by, both the authorities below. This was never the case of the Department and was never so argued by and on behalf on the Department. The suspicion around the agreement has been cast for the first time by the Hon'ble Bench and their finding in this regard has been supported by a judgment of Hon'ble Apex Court. Neither the facts nor the judgment which have been stated in the order of Hon'ble Bench in order to draw adverse inference against the appellant-assessee were ever put or explanation.
(iv) In the process, Hon'ble Bench did not consider the 'implication' of such improper findings of ld. CIT(A) as recorded in para No. 4.5.3 at page no. 12 of the appeal order which carried no bearing effect in the absence of cross-examination of the witness under consideration. Nor an opportunity was provided to the appellant-assessee to explain the facts and circumstances contained in the report of the Inspector. To this extent, the findings arrived at by the Hon'ble Members solely on the basis of an allegedly questionable agreement dated 2.6.2011 are not 'well-reasoned'. The same deserves to be reconsidered in the light of the results of thecross- examination of the witness under consideration and an opportunity need to be provided to the appellant-assessee to explain the facts and circumstances which for the first time have been adverted upon in the order of Hon'ble Bench as an irreparable damage has resulted form the decision of Hon'ble Bench.
3 MA No. 138/JP/2016Shri Rajendra Kumar Sharma
(v) While relying on the judgment in the case of Narendra Mohan Uniyal (Supra), the ld. CIT (A) had misinterpreted the meaning of 'land appurtenant to the building' on whimsical pleas in para 4.5.1 at page no. 11 of the appeal order. Such interpretation a propounded by the ld. CIT(A) does not hold good from obvious reasons. Accordingly, the appellant had disputed such interpretation vehemently vide additional ground no. 2. The learned Members did not dwell upon such ground, and did not give 'specific' finding regarding definition of 'land appurtenant to the building' as propounded by the ld. CIT(A). In the circumstances, the appeal order is 'non-speaking' and is not a 'well-reasoned' order.
In the light of above discussion, your Honors would appreciate that in the interest of 'equity' and 'natural justice', it would be in the fitness of things, I the above appeal order is re-called to reconsider the above omitted facts and points at issue. The humble appellant-assessee therefore prays that an opportunity may kindly be provided to explain the new issues discussed in the order of Hon'ble Bench and the additional ground be allowed to be argued afresh. Appellant-assessee would be grateful for this act o kindness and seeks leave to lead judgments in support of this application and the issues involved in the appeal."
2. The ld. Counsel, however, submitted that non-adjudication of the additional ground is an apparent mistake from the record. He drew our attention to the Tribunal's orders to the mistake that there is no whisper of additional ground as the applicant had made specific request vide application dated 8/3/2016. Further, he submitted that another apparent mistake which is crept in the Order of the Tribunal is that the appeal preferred by the assessee has been dismissed solely on the plea that the genuineness of the agreement dated 2/6/2011 was questionable, the veracity of which was never an issue before or under challenge by both the authorities below. It is submitted that this was never the case of the Department and never so argued by on behalf of the Department. The agreement has been 4 MA No. 138/JP/2016 Shri Rajendra Kumar Sharma doubted first time by the Tribunal. The assessee was not given an opportunity for explaining the issue.
2.1. On the Contrary, the Ld. Departmental Representative opposed the submissions as made by the Ld. Counsel for the assessee and submitted that there is no apparent mistake from the record. The assessee is trying to seek review of the order.
2.2. We have heard the rival contentions and perused the material available record. We find that there is an application dated 9/3/2016 praying therein for admission of additional grounds of appeal. We find that as per Order Sheet dated 30/3/2016, there is no mention of additional ground even in the order sought to be rectified. There is no mention of such additional grounds. It is contended by the Ld. Counsel for the assessee that these grounds were raised before the Bench.
However, the same were not adjudicated. After considering the totality of facts and in the interest of justice, we recall our order dated 27/4/2016 to the extent of admission of additional grounds. Therefore, the appeal is to be fixed for hearing for admission of additional grounds. It appears that inadvertently, there is no mentioning of additional grounds. Therefore, this is an apparent mistake from the record requires rectification. The application is disposed of as indicated above.
3. In the result, Miscellaneous application is allowed.
Order is pronounced in the open court on 08 /03/2017.
Sd/- Sd/-
¼ foØe flag ;kno] ½ ( dqy Hkkjr)
( VIKRAM SINGH YADAV) ( KUL BHARAT )
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Jaipur
Dated:- 08/03/2017.
5
MA No. 138/JP/2016
Shri Rajendra Kumar Sharma
Pooja-
vkns'k dh izfrfyfi vxzfs "kr@Copy of the order forwarded to:
1. The Appellant- Shri Rajendra Kumar Sharma, Jaipur.
2. The Respondent- The Joint Commissioner of Income-tax, Range-4. Jaipur.
3. The CIT(A).
4. The CIT,
5. The DR, ITAT, Jaipur
6. Guard File (M.A. 138/JP/2016) vkns'kkuqlkj@ By order, lgk;d iathdkj@ Assistant. Registrar