SMT. DIVA SINGH, JUDICIAL MEMBER

D.C. Garg, CA for the Appellant.

ORDER

1. The present appeal has been filed by the assessee assailing the correctness of the order dated 20.01.2016 of the CIT(A), Faridabad pertaining to 2011-12 on the following grounds:—

2. At the time of hearing, an adjournment application was noted to have been placed on record by the Revenue. It is seen that in all appeals fixed for hearing on 26.09.2016 and 27.09.2016 the Revenue has moved adjournments stating that the Ld. Sr. DR is on leave. No one was present in support of the application moved. However, considering the material available on record and after hearing the Ld.AR the said request was rejected as it was found that the appeal could be decided on the basis of material available on record without in any manner adversely affecting the interests of the Revenue.

3. Addressing the facts, the Ld. AR submitted that the assessee remained unrepresented before the CIT(A) in view of the fact that the assessee's wife was suffering from Cancer from September 2012 itself. Medical reports pertaining to the specific period were relied upon. The copies are placed at pages 27 to 49 of the Paper Book. Accordingly, it was his submission that on account of these facts, the assessee remained unrepresented before the AO as well as the CIT(A). In view thereof, it was submitted that the opportunities which may have been provided before the AO remained uncomplied with and an assessment order u/s 144 was passed. It was his limited prayer that the issue may be restored to the AO for a proper appreciation and adjudication of facts. The Ld.AR gave his oral undertaking that in the eventuality the issues are restored the assessee would fully participate in the proceedings.

3.1 A perusal of the record shows that the assessee returned an income on SAHAJ of Rs.1,27,980/-. The said return was picked for scrutiny under CASS. As a result thereof, the assessee was required to explain the deposits of Rs.26,50,000/- in the assessee's saving account maintained with the INGVyasa Bank Ltd. Since no explanation was afforded, addition of the said amount was made by the AO in the hands of the assessee.

4. In appeal before the First Appellate Authority the assessee, represented through a counsel relied upon the written submissions and the evidences filed. Since as per record, no application seeking admission of fresh evidences under Rule 46A was filed, the evidences were considered as not admissible by the CIT(Appeals) and the additions were sustained.

5. In the afore-mentioned peculiar facts and circumstances and considering Ground No.4 raised in the present appeal alongwith the prayer of the Ld.AR, I am of the view that the impugned order cannot be upheld. The record shows that the assessee before the CIT(A) has pleaded his wife's illness as reasons for non-representation before the AO. This fact is evident from the following written submissions extracted by the CIT(A) in his order:—

"4. That having regard to the facts and circumstances of the case, Ld.A.O. has erred in law and on facts in passing the impugned assessment order making addition without giving adequate opportunity of being heard because he know very well that wife of assessee is suffering from Cancer. The Assessee wife evaluated with P ET-CT revealed Hypermatabolic left breast mass lesion consistent with malignant pathology, multiple Hypermatabolic left auxiliary node are likely metastatic & invasion of overlying skin, subcutaneous tissue complex with retraction of nipple. She was diagnosed as case of carcinoma breast left (LABC).

As Ld. A.O. mention that he issued notice number of times but we want to cleared that they are not served on the assessee because most of the time the assessee house was found locked. The assessee was busy in saving the life of his life partner Chander Kanta dua and his mostly time spent in hospital for treatment of his wife in NCR (Faridabad & Delhi) hospital, at last the notice was served to the assessee in Asain Hospital when he is attending his wife. Even the Ld. AO not try to understand the problem of the assessee." (Emphasis provided)

5.1 Considering the fact that the assessment order has also been passed ex-parte u/s 144 alongwith the pleading that the assessee could not participate in the proceedings before the AO as he remained pre-occupied with his wife's illness, admittedly reasons justifying admission of fresh evidences were brought on record before the CIT(Appeals). The fresh evidences sought to be placed on record were rejected for want of an appropriate application being moved by the Ld. Counsel who drafted the appeal. I find that the hyper-technical view taken by the First Appellate Authority in outrightly rejecting the appeal cannot be upheld. While so holding, I also record my anguish at the falling standards of drafting and basic level of legal knowledge evidenced in the failure to even file an appropriate application. Noting that it is well-accepted that the justice dispensation requires that every person is presumed to know the law, I am pained to observe that the truth is otherwise. The said presumption, I find can be said to be misplaced especially in respect to following the laws relating to pleadings before the Tax authorities. By its very nature Tax proceedings are not adversorial and quasi-judicial in its nature. It may not be out of place to refer to the words of wisdom addressed by the Apex Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria 2012 (3) SCALE 550 which necessarily needs to be kep in mind during all judicial and quasi-judicial proceedings that, truth is the cherished ideal and ethos of India and truth alone has to be the foundation of justice and at all levels the judges have to seriously engage themselves in the journey of discovering the truth. The Apex Court reminded that Judges in India cannot simply sit as mere umpires in a contest between two parties and merely declare at the end of the combat who has won and who has lost. The judge, it has been held, must take an active role in the proceedings in finding the truth while administering justice. The aforesaid observations of the Apex Court with respect to the manner of administering justice is all the more relevant for quasi judicial tax authorities to follow. The tax administration is well aware that in its efforts in seeking to expand their tax net apart from drawing the big taxpayers in its net, sizeable numbers of marginal tax payers are also added. These marginal taxpayers may not necessarily be having either sound financial or economic understanding and to put it differently may not be "tax literate". These marginal taxpayers are easily drawn to the available expertise of "tax practitioners" who may not necessarily be either Advocates or Chartered Accountants and may be only "Tax Return Preparers" who themselves may also not be aware of the nitty gritties of either the tax laws or the Rules. Hence while hearing and determining issues raised by the parties strictly as per the rules there may be inadvertent procedural violations. Such failure to follow procedure may therefore be due to lack of sound legal knowledge available to the assessee or at times due to oversight. Yet such an omission may irreparably harm a literate yet "a tax illiterate" tax payer for no fault of his except of having entrusted his tax brief to a counsel who himself was unaware of the procedures. Since truth alone is the foundation of justice, I am pained to note as to what stopped the Ld. Commissioner from simply directing the assessee to file the evidences in terms of the Appropriate Rule. The tax administration cannot be expected to remain in a mode of self denial of the socia-economic realities of the times where still, despite the best efforts of the government, the tax paying population is not necessarily literate let alone tax literate. No doubt mere literacy itself is not a guarantee that the person will be blessed with sound financial knowledge and a basic legal understanding of taxing statutes but its lack definitely further compounds the handicap. It is a well noted fact that where the best of the minds devoted entirely to plumbing the hidden depths of this vast ocean are often left trying to grapple despite the availability of battery of well informed lawyers and Chartered Accountants to find solutions to the unexpected unimagined complex tax related issues cropping up with each change in the relevant provisions. Thus, to presume that each and every taxpayer has the benefit of this updated tax knowledge is still a utopian expectation as I have repeatedly seen that in the case of the marginal taxpayers even the basic knowledge and awareness in the advise made available itself is found missing. I find the expectation thus that the marginal taxpayer is equally well informed in the present times is still as observed a utopian expectation.

5.2 The Tax administration cannot be expected to be so divorced from the realties that the pains and agonies of an ill-informed tax illiterate person cannot be heard and understood. The pain of such a taxpayer is further compounded by factors beyond his control, as in the facts of the present case, where the counsel entrusted to represent him was also an equal "novice" as admittedly being ignorant of the Rules and procedures under which additional evidence could have been produced he failed to exercise due care and attention. To my mind, the tax so collected on the foundation of the ignorances of a "tax illiterate taxpayer" cannot be termed to be a collection of either "just" nor "due" taxes collected by the State in accordance with law. I am of the view that the assessee represented by an equally ignorant counsel, should have been appropriately guided by the First Appellate Authority. The fact that the Ld. Commissioner (Appeals) while exercising his discretion refused to admit evidence inspite of sufficient cause being shown as a matter of record is unwarranted and arbitrary. It cannot be ignored that Ld. First Appellate Authority also had a duty to discharge i.e. to ensure that only just and fair taxes due to the "State" may be collected. While adjudicating and determining the issues, it cannot be countenanced that the Adjudicating Authority is afraid to give appropriate directions. In a case like the present case such a direction could not have been perceived to be not given on account of the fear of being considered a negative reflection on the "fair" conduct of the Ld. Commissioner (Appeals). The performance and discharge of duties would not be said to be found wanting or faulted with if the Commissioner (Appeals) in the performance of his duty apprises and grants opportunity to the assessee to meet the requisite procedural requirements of Rule 46A. The Commissioner (Appeals) sitting in an authoritative adjudicating position necessarily would have complete knowledge of the Income-tax Act and Rules. He is presumed to have more than adequate experience and should have been inculcated with a sense of public service to give the benefit of his learning to a disadvantaged taxpayer by putting him to notice in case of violation of procedure, as in the instant case that any evidence not made available to the AO requires that an application seeking fresh evidences under Rule 46A with reasons for their admission is necessary. Any such opportunity to produce fresh evidence under Rule 46A given during the proceedings to my mind, would not in any way reflect on his impartiality. If fresh evidence is being relied upon by an assessee before the First Appellate Authority without any appropriate applications under Rule 46A, it would be arbitrary to deny the taxpayer an opportunity to produce the same as per law.

5.3 In the facts of the present case the prayer that the evidences could not be placed before the AO because of pre-occupation of the assessee with illness of his spouse is a consistent fact on record. The explanation offered which though reproduced has not been rebutted by the CIT(A) considering the material available on record, is accepted and the fresh evidences are directed to be admitted. A marginal taxpayer, as in the instant case, battling with unforeseen and unfortunate circumstances of the illness of a life partner and further disadvantaged by lack of proper legal advise, should have been assisted instead of being trampled heartlessly in the name of technicalities. The technicalities can co-exist with a humane approach. While so holding I believe that there is an urgent need to inculcate a sense of public service and humane approach in the tax administration and to ensure that the marginal taxpayers are encouraged, assisted and guided on procedural requirements by the tax authorities with sound advise instead of instilling in them a sense of fear and panic and thus forcing them away from tax compliances and in the arms of unsavoury advisors who thrive and prey on this fear of the population. Such positive steps to my mind will go a long way in ensuring a tax compliant population.

5.4 Accordingly, on a consideration of the facts, circumstances and material available on record, I am of the view that since in the facts of the present case due to his wife's illness the assessee was prevented by sufficient cause from producing the evidences in support of its claim, it would be appropriate and in the interests of justice that in the peculiar facts and circumstances of the case, the impugned order is set aside and the issue is restored back to the CIT(A) with a direction to permit the assessee to produce the evidences in support of its claim. The CIT(A) after confronting the same to the AO and directing the AO to file a Remand Report shall confront the same to the assessee and thereafter pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. The opportunity so granted, it is hoped is not abused by the assessee and it is made clear that failing which the CIT(A) would be at liberty to pass a speaking order on the basis of material available on record.

6. In the result, the appeal of the assessee is allowed for statistical purposes.