Sri.Mahaboob Basha K , Ananthapur V. The Income TAx Officer Ward-5(3)(2), Bangalore

ITA 1062/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5897 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 29 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 01-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 02-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABDUL HAKEEM M
• Assessee Lawyers: OMAR ABDULLAH S M
• Keywords: Opportunity of being heard
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-A BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 1062 / BANG/201 8 ASSESSMENT YEAR : 20 1 0 - 11 SHRI MAHABOOB BASHA .K, D.NO. 6-2-187, KOVUR NAGAR, ANANTAPUR DISTRICT, ANDHRA PRADESH 515 004. PAN: AWVPK6079L VS. THE INCOME TAX OFFICER, WARD 5 (3) (2), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI OMAR ABDULLAH S M, CA RESPONDENT BY : SHRI ABDUL HAKEEM .M, JCIT (DR) DATE OF HEARING : 2 5 . 0 4 .2018 DATE OF PRONOUNCEMENT : 04 . 0 5 .201 8 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE WHICH IS DIREC TED AGAINST THE ORDER OF LD. CIT(A)-5, BANGALORE DATED 22.02.2018 FOR ASSESS MENT YEAR 2010-11. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE ORDER OF THE LEARNED CIT (A) IS OPPOSED TO L AW, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE ORDER OF THE LD. AO AND LD. CIT (A) IS PASSE D IN HASTE, WITHOUT PROVIDING SUFFICIENT AND REASONABLE OPPORTUNITY OF BEING HEARD. 3. THE ORDER IS PASSED AGAINST THE PRINCIPLE OF NAT URAL JUSTICE AND THUS LIABLE TO BE QUASHED. 4. THE LD. CIT(A) ERRED IN COMING TO THE CONCLUSION THAT THE APPELLANT WAS NOT INTERESTED IN PURSUING THE APPEAL. IN DOING SO, THE LD. CIT(A) ERRED IN IGNORING THE ADJOURNMENT LETTERS BY THE AP PELLANT AND COMPLETING THE APPELLATE PROCEEDINGS FOR WANT OF PR OSECUTION. 5. THE LD. AO ERRED IN TREATING AN AMOUNT OF RS. 22 ,89,900/- DEPOSITED IN A THIRD PARTY'S ACCOUNT AS INCOME OF T HE APPELLANT AND ADDING IT TO HIS RETURNED INCOME. ITA NO.1062/BANG/2018 PAGE 2 OF 3 6. NOTWITHSTANDING THE ABOVE, THE LD. AO ERRED IN M AKING THE ADDITION UNDER THE HEAD -COME FROM OTHER SOURCES. 7. THE LD. AO OUGHT TO HAVE APPRECIATED THAT THERE IS NO NEXUS BETWEEN THE AMOUNT DEPOSITED IN A THIRD PARTY'S ACC OUNT AND THE APPELLANT 8. THE LD. AO FAILED IN APPRECIATING THAT IT IS A P URE CASE OF MIS- QUOTING OF PAN. 9. THE LD. AO ERRED IN COMPLETING THE ASSESSMENT ON MERE ASSUMPTIONS AND SURMISES WITHOUT CONDUCTING ANY ENQ UIRY. 10. THE LD. AO ERRED IN CHARGING INTEREST U/S 234A AND 234B OF THE ACT, WHEN THE APPELLANT WAS NOT OBLIGED TO PAY ANY SUCH INTEREST. THE APPELLANT SEEKS THE LEAVE OF THE HON'BLE ITAT T O ADD, ALTER, AMEND OR DELETE ANY OF THE GROUNDS URGED AT THE TIM E OF HEARING. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR O F ASSESSEE THAT THE IMPUGNED ORDER OF CIT(A) IS EX-PARTE QUA THE ASSESSEE. HE F URTHER SUBMITTED THAT IT IS NOTED BY CIT(A) IN PARA 5 OF HIS ORDER THAT SEVERAL NOTICES WERE ISSUED BY HIM ON 19.04.2016, 20.09.2017 AND 17.01.2018 BUT THE AS SESSEE HAS NOT EVEN MADE APPLICATION FOR ADJOURNMENT OF THE HEARING. H E SUBMITTED THAT THIS IS NOT CORRECT AND IN THIS REGARD, HE DRAWN MY ATTENTION T O PAGE 13 OF PAPER BOOK WHICH CONTAINS COPY OF EMAIL SENT BY ASSESSEE TO CI T(A) ON 16.01.2018 IN WHICH IT WAS REQUESTED BY ASSESSEE THAT HE CANNOT A TTEND THE HEARING FIXED ON 17.01.2018 BECAUSE THE ASSESSEE WAS OUT OF TOWN ON A FAMILY MEDICAL SITUATION AND THEREFORE, THE HEARING MAY BE ADJOURN ED TO ANY DATE IN FEBRUARY 2018. HE SUBMITTED THAT IN SPITE OF THIS, LD. CIT( A) HAS DISPOSED OF THE APPEAL WITHOUT GRANTING ANY FURTHER OPPORTUNITY ALTHOUGH T HE IMPUGNED ORDER IS PASSED BY HIM ON 22.02.2018. HE SUBMITTED THAT IN THE INT EREST OF JUSTICE, THE MATTER MAY BE RESTORED BACK TO THE FILE OF CIT(A) FOR FRES H DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO ASSESSEE. T HE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A). 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND THAT THIS IS NOTED BY CIT(A) IN PARA 5 OF THE IMPUGNED ORDER THAT THE LAST DATE OF HEARING FIXED IS 17.01.2018 AND AS PER THE LD. CIT(A), NO REPLY WAS FILED BY AS SESSEE TO THIS HEARING NOTICE ITA NO.1062/BANG/2018 PAGE 3 OF 3 AND NO REQUEST WAS MADE FOR ADJOURNMENT. BUT AS PE R COPY OF EMAIL DATED 16.01.2018, IT WAS REQUESTED BY ASSESSEE TO ADJOURN THIS HEARING FIXED ON 17.01.2018 AND TO FIX THE SAME IN FEBRUARY 2018. U NDER THESE FACTS, I FEEL IT PROPER THAT IN THE INTEREST OF JUSTICE, THIS MATTER SHOULD GO BACK TO THE FILE OF CIT(A) FOR FRESH DECISION. ACCORDINGLY, I SET ASID E THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECIS ION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. IN VIEW OF THIS, NO ADJUDICATION IS CALLED FOR REGARDING THE MERIT OF THE CASE AT THE P RESENT STAGE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 04 TH MAY, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.