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2021 (5) TMI 411 - AT - Income TaxViolation of principles of natural justice - right to be heard - Rectification u/s 154 - Period of limitation - return is e-filed - bonafide mistakes of ignorance of facts - Rectification of amount received compulsory acquisition of land by the Government - rectified computation of income and proof of payment for compensation made by the District Magistrate (SDM)-cum-Land Acquisition Collector, Sangrur for consideration and necessary action HELD THAT:- Rectification application duly e-filed was not disposed of within the statutory time limit remains unaddressed. Similarly, the reasoning that the application referred to by the AO is a manual application filed later by the Counsel for the appellant cannot be considered to be the original application filed through e-portal appears to be a case of heads you loose and tails also you loose. The submission afforded as an argument cannot be substituted for the original application to the prejudice of the assessee. If there were deficiencies, in the e-filing of the application, these should have been notified to the assessee for correcting the defect. The tax authorities cannot be seen to violate the Statutory time lines at their whims and fancies. The disposal of the appeal in this manner cannot be upheld. Similarly the reasoning that, " The manual application signed by the Counsel, is in itself not regular unless it is by way of a reminder with regards to the online application filed" also does not address the issues at hand. The issue remains open since it is unclear was it treated as a reminder or a substitution. , in case there were any deficiencies in the rectification application filed by the assessee, then the defect should have been notified and opportunity to correct the same should have been provided. The assessee cannot be subsequently burdened on account of lapses etc. which were never pointed out. The primary issue which thus, remains for consideration is can the rectification order be said to have been passed within the statutory timeline. On the facts as available on record, it appears that the answer is no. However, since the issue has been deflected/obfuscated, it is remanded back for consideration afresh. What would constitute record? - what would constitute the record for a case of rectification like this wherein the return is e-filed? - As limitations of documents only filed on e-portal cannot operate against the citizen taxpayers. The systems set in place for robust tax collection cannot be so used as to deprive the tax paying citizens from getting a fair hearing and seek a proper adjudication on disputed facts. Such an action would be wholly unjustified. The systems and e-portals are still in the process of being fine tuned and still in the process of being perfected. They cannot be presumed to be so sacrosanct and final and thus beyond critical scrutiny. For the purposes of the present proceedings, as will confine myself to holding that every statutory order/decision and relevant facts which went into the decision making of punching the figures on e-portal at the relevant point of time would constitute the record for the purposes of proceedings u/s. 154. All bonafide mistakes of ignorance of facts; misinterpretation and incorrect understanding of relevant statutory provisions etc. applicable at that specific point of time would be covered under this umbrella. The axioms that the mistake is rectifiable only which is patently evident on the face of the record of course remains inviolate what has been elaborated is what would constitute the record. Can written submissions without a conscious waiver be treated as waive of Right to be heard? - In the facts of the present case, it is seen that written submissions had been advanced. It is seen that the submissions were considered but did not find favour with the First Appellate Authority as the order u/s. 154 stood confirmed. From the body of the order, it is not evident whether the assessee was confronted with the fact that its written submissions were not sufficient for relief prayed for and that the assessee was given an opportunity of being heard thereafter. In the eventuality, written submissions of the assessee were found to be insufficient for granting relief and were considered to be not relevant, then the assessee should in all fairness be necessarily confronted with the fact that its claim was not allowable and be given due notice thereof. The purpose being that if the assessee still has something further to say, the opportunity of so saying should have been provided. The arbitrary presumption that the assessee shall have nothing to state cannot be upheld. The due process of law envisages an opportunity of fair representation. As evident from the impugned order assailing which specific ground invoking principles of natural justice has been taken that the right to be heard was not waived off by the assessee by mere making available of the written submissions to the First Appellate Authority. No doubt a party may choose to waive the right to be heard and instead choose to rely only on written submissions - it is the duty of the adjudicating authorities to ensure that the waiver so made is intelligently made and with full knowledge and understanding i.e. with the foreknowledge that the right to be heard 'exists. The record is silent on this aspect. In the facts of the present case there is nothing on record to show that the right to be heard was consciously and knowingly waived. The order cannot be upheld and deserves to be set aside. The impugned order is set aside in toto and restored back to the file of the CIT(A) with a direction to pass a speaking order in accordance with law first on the maintainability of the order itself after giving the assessee a reasonable opportunity of being heard - Appeal of the assessee is allowed for statistical purposes.
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