Shri Rajendra N H , Mysore V. Income Tax Officer Ward-2(1), Mysore

ITA 1059/BANG/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7895 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 02-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ROHIT GAUTAMCHAND
• Keywords: Opportunity of being heard

Judgement Text

ITA.1059 & 1060/BANG/2018 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BENGALURU BENCH 'A', BENGALURU BEFORE SHRI. INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI. LALIET KUMAR, JUDICIAL MEMBER I.T.A NOS.1059 & 1060/BANG/2018 (ASSESSMENT YEAR : 2014-15) SHRI. RAJENDRA N. H, NO.912/2, 2 ND CROSS, UMA TALKIES ROAD, MYSURU .. APPELLANT PAN : ACPPR0781A V. INCOME-TAX OFFICER, WARD 2(1), MYSURU .. RESPONDENT ASSESSEE BY : SHRI. ROHIT GAUTAMCHAND, CA REVENUE BY : DR. P. V. PRADEEP KUMAR, ADDL. CIT HEARD ON : 06.07.2018 PRONOUNCED ON : 18.09.2018 O R D E R PER LALIET KUMAR, JUDICIAL MEMBER : THESE ARE TWO APPEALS FILED BY THE ASSESSEE, AN IN DIVIDUAL, AGAINST THE SEPARATE ORDERS OF CIT (A), MYSURU, DT. 31.10.2017, PASSED IN PURSUANCE TO THE ORDERS OF THE ITO, WARD -2(1), MYSORE, U/S.143(3) AND U/S.271(1)(C) OF THE ACT, FOR THE AS SESSMENT YEAR 2014-15, ON THE FOLLOWING GROUNDS : ITA.1059 & 1060/BANG/2018 PAGE - 2 GROUND NOS.1 TO 3 ARE COMMON FOR BOTH THE APPEALS A RE AS UNDER : GROUND NOS.4 &5 IN ITA.1060/BANG/2018 : ITA.1059 & 1060/BANG/2018 PAGE - 3 02. IT IS THE CASE OF THE ASSESSEE THAT AN ASSOCIAT E OF THE ASSESSEE NAMELY SHRI. VIKAS DASARATH LOUTE WAS TRAVELLING IN A GOVERNMENT BUS TO CALICUT AND ON THE ROUTE, HE WAS INTERCEPTED BY THE EXCISE DEPARTMENT AND CASH OF RS.26 LAKHS WAS RECOVERED FR OM HIS POSSESSION. AS THE SAID PERSON FAILED TO DISCLOSE THE SOURCE OF THE CASH, THEREFORE THE POLICE SEIZED THE AMOUNT. THER EAFTER THE MAJISTRATE, ON EXAMINATION OF THE DOCUMENT HAS RELE ASED THE AMOUNT. HOWEVER THE COURT HAD DIRECTED THE INCOME- TAX DEPARTMENT TO INVESTIGATE AND DECIDE THE MATTER WIT HIN THREE MONTHS FROM THE DATE OF COMMUNICATION OF THE ORDER DT.10.11.2014. THE COURT HAD RELEASED 60% OF THE AMOUNT AND THE RE MAINING 40% WAS HELD BY THE COURT TILL THE PROCEEDINGS WERE COM PLETED BY THE INCOME-TAX DEPARTMENT. 03. PURSUANT TO THE DIRECTION OF THE COURT, THE AO AFTER ISSUING THE NOTICE HAD COMPLETED THE ASSESSMENT PROCEEDINGS AND HAD MADE THE ADDITION OF RS.26 LAKHS IN THE INCOME OF THE ASSESS EE FOR THE A. Y. .FURTHER THE AO ALSO IMPOSED PENALTY OF RS.8,03,400 /- VIDE A SEPARATE ORDER DT.20.01.2015. FEELING AGGRIEVED BY THE ORDERS PASSED BY THE AO IN THE QUANTUM AS WELL AS PENALTY PROCEEDINGS, THE ASSESSEE ASSAILED THE SAME BEFORE THE CIT (A). 04. HOWEVER NONE APPEARED BEFORE THE CIT (A) AND TH E ASSESSEE IN THIS REGARD HAD SUBMITTED THAT THE APPEAL WAS FI LED THROUGH THE CA SHRI. RAMPRIYA DAS. HE HAS NOT APPEARED ON 19.0 9.2017 AND MADE A REQUEST FOR ADJOURNMENT FOR 30.10.2017. ACC ORDINGLY THE CIT (A) ADJOURNED THE MATTER FOR 30.10.2017. THE C A OF THE ITA.1059 & 1060/BANG/2018 PAGE - 4 ASSESSEE COULD NOT APPEAR ON 30.10.2017 AS HE WAS B USY WITH TAX AUDIT AND ACCORDINGLY THE CIT (A) HAD PASSED AN EX- PARTE ORDER AND CONFIRMED THE ADDITION MADE BY THE AO VIDE ORDER DT .31.10.2017. 05. NOW THE ASSESSEE BEFORE US HAS SUBMITTED THAT T HE ORDER PASSED BY THE CIT (A) IS REQUIRED TO BE MODIFIED AN D THE MATTER IS REQUIRED TO BE SENT BACK TO THE FILE OF THE CIT (A) TO BE DECIDED ON MERIT , AS FOR THE FAULT OF CA, THE ASSESSEE CANNOT BE PENALISED AND MOREOVER THE ABSENCE OF CA DURING THE APPELLATE PRO CEEDINGS BEFORE THE CIT (A) WAS ON ACCOUNT OF THE AFORESAID REASONS. 06. ON THE OTHER HAND THE LD. DR VEHEMENTLY OPPOSED THE REMAND OF THE PROCEEDINGS TO THE CIT (A) AND HEAVIL Y RELIED UPON THE ORDER PASSED BY THE LOWER AUTHORITIES. 07. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ABSENCE OF THE CA WAS ON ACCOUNT OF REASONS MEN TIONED HEREINABOVE. IT IS AN UNDISPUTED FACT THAT THE AUD ITORS WERE BUSY WITH THE AUDITING WORKS AND FILING OF RETURNS UPTO 31. 10.2017. THEREFORE THE EXPLANATION GIVEN BY THE ASSESSEE THA T THE CA WAS BUSY WITH THE TAX AUDIT WORK AND COULD NOT APPEAR B EFORE THE CIT (A) ON 30.10.2017, I.E., 30.10.2017, IS A PLAUSIBLE EXPLANATION. IN THE LIGHT OF ABOVE, WE DEEM IT APPROPRIATE TO REMAN D THE MATTER TO THE FILE OF THE CIT (A) TO DECIDE THE ISSUE AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. NEEDLE SS TO SAY IF THE ASSESSEE DEEMS IT APPROPRIATE TO FILE ANY DOCUMENT, HE MAY DO SO. ITA.1059 & 1060/BANG/2018 PAGE - 5 FURTHER THE CIT (A) WHILE DECIDING THE APPEAL SHALL RELY UPON THE DOCUMENTS AND MAY SEEK A REMAND REPORT FROM THE AO. 08. WE MAY LIKE TO POINT OUT THAT THE REAL PURPOSE OF THE APPEAL PROCEEDINGS IS TO TAX THE TAXABLE INCOME, HENCE I NSTEAD OF DECIDING THE APPEAL ON A TECHNICAL GROUND, THE APPEAL SHOULD BE DECIDED BY THE AUTHORITIES ON SUBSTANTIVE BASIS AND SHOULD NO RMALLY AVOID DECIDING THE APPEALS ON TECHNICAL GROUNDS. 09. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE , CHALLENGING THE ORDERS ON QUANTUM AND PENALTY, ARE ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH DAY OF SEPTEMBER, 2018. SD/- SD/- (INTURI RAMA RAO) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER BENGALURU DATED : MCN* COPY TO: 1. THE ASSESSEE 2. THE ASSESSING OFFICER 3. THE COMMISSIONER OF INCOME-TAX 4. COMMISSIONER OF INCOME-TAX(A) 5. DR 6. GF, ITAT, BANGALORE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, ITA.1059 & 1060/BANG/2018 PAGE - 6 BANGALORE.