H.S. Thyagaraja (HUF), Bangalore V. ITO, Bangalore

ITA 1067/BANG/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9406 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 26-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: TSHERING ONGDA JT
• Assessee Lawyers: S KRISHNA SWAMY
• Section: 143(3); 142(1); 234B; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC A BENCH : BANGALORE BEFORE SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.1067/BANG/2016 ASSESSMENT YEAR : 2005-06 M/S. H.S. THYAGARAJA (HUF), NO.14, LAKSHMI BUILDING, ROOM NO.10, J.C. ROAD, BANGALORE 560 002. PAN: AAAHH 5471G VS. THE INCOME TAX OFFICER, WARD 1(4), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI S. KRISHNA SWAMY, CA RESPONDENT BY : SHRI TSHERING ONGDA, JT. CIT(DR) DATE OF HEARING : 08.08.2016 DATE OF PRONOUNCEMENT : 08.09.2016 O R D E R THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINS T THE ORDER OF THE CIT (APPEALS)-5, BENGALURU DATED 10.02.2016 FOR THE ASSESSMENT YEAR 2005-06. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER :- 1. THE ORDER OF THE LEARNED INCOME TAX OFFICER AN D CIT (APPEALS) IS AGAINST LAW AND FACTS. 2. SERVICE OF NOTICE/ORDER: I. THE LEARNED INCOME TAX OFFICER AND CIT(APPEALS) ERR ED IN IGNORING THE BASIC REQUISITE OF ISSUE OF A NOTICE U /S 143(2) OF THE INCOME TAX ACT / NOTICE U/S 144 OF THE INCOME TAX ACT ITA NO.1067/BANG/2016 PAGE 2 OF 5 HAD NOT BEEN COMPLIED WITH ALTHOUGH THE INCOME TAX OFFICER STATED IN THE ORDER THAT SUCH A NOTICE HAS BEEN 'IS SUED'. II. THE LEARNED CIT (APPEALS) ERRED IN IGNORING THE FAC T THAT THE ASSESSMENT ORDER WAS SERVED ON 13-8-2013 WELL BEYON D THE STATUTORY DATE FOR COMPLETION OF ASSESSMENT. DATE OF NOTICE U/S 148 11/03/2010 DATE OF ORDER 27/12/2010 DATE OF RECEIPT OF ORDER 13/09/2013 III. THE LEARNED CIT (APPEALS) ERRED IN NOT ADJUDICATING ON THE GROUND RELATING TO NON-SERVICE OF NOTICE U/S 143(2) /144 AND ASSESSMENT ORDER WITHIN THE STATUTORY PERIOD. 3. THE LEARNED INCOME TAX OFFICER AND CIT (APPEA LS) ERRED IN HOLDING THAT A RECORD OF ORAL PORTION REQUIRED R EGISTRATION (PARA 3) AND HENCE NOT A VALID DOCUMENT. 4. THE LEARNED INCOME TAX OFFICER AND CIT (APPEAL S) ERRED IN HOLDING THAT A PROPERTY (HUF OWNED ONLY ONE HOUS E PROPERTY) WHICH CANNOT BE PARTITIONED BY METES AND BOUNDS BUT BY SPECIFICATION OF SHARE AMOUNTED TO A I. NOT A VALID PARTITION AS PROPERTY NEEDS TO BE PARTITIONED BY METES AND BOUNDS, AND II. THAT THIS AMOUNTED TO A PARTIAL PORTION (PARA 4 (I)); THE LEARNED INCOME TAX OFFICER AND CIT (APPEALS) IG NORED THE DEFINITION OF THE RELEVANT TERMS IN THE SECTION CITED- SECTION 171 (9) EXPLANATION. 5. THE LEARNED INCOME TAX OFFICER AND CIT(APPEALS) ERR ED IN HOLDING THAT NON-REGISTRATION WITH THE SUB-REGISTRA R WAS MANDATORY AND THE STATEMENT MADE THERETO AMOUNTED T O 'AN ADMISSION' THAT NO PARTITION WAS MADE. 6. THE LEARNED INCOME TAX OFFICER AND CIT (APPEALS) ER RED IN RELYING ON THE PROVISION RELATING THE PARTIAL PARTI TION WHICH IS NOT THE CASE HEREIN. ITA NO.1067/BANG/2016 PAGE 3 OF 5 7. THE LEARNED INCOME TAX OFFICER HAVING NOT ISSUED AN Y HEARING NOTICE ERRED IN TAXING A SUM OF RS. 1,20,000/- WITHOUT ASKING FOR ANY EXPLANATION ; THE EXPLANATION WAS AVAILABLE IN RECORDS OF EARLIER PRO CEEDINGS WHERE IT WAS STATED THAT THE INVESTMENT HAD BEEN MA DE BY MRS. GITA THYAGARAJ OUT OF HER SRIDHAN. 8. THE LEARNED INCOME TAX OFFICER ERRED IN LEVYING INT EREST U/S 234B WHEN THE INCOME WAS SUBJECT TO TAX DEDUCTION A T SOURCE AND THE LEARNED CIT (APPEALS) ERRED IN IGNORING THE GROUND. 9. ADDITION OF REFUNDS NOT RECEIVED BY THE MINORS THE LEARNED INCOME TAX OFFICER ERRED IN ADDING THE FOLLOWING SUM ON THE ASSUMPTION THAT REFUNDS OF TDS IN THE MINOR'S HAND HAD BEEN GRANTED WHEN THE MINORS HAD N OT FILED THE RETURN AND NOT CLAIMED ANY SUCH REFUND OR ANY S UCH REFUND WAS EVER ISSUED. THIS WAS ALSO MADE CLEAR IN A LETTER ADDRESSED TO THE ASSESSING OFFICER. P A RTICULAR S T D S INT E R ES T T . SOMA S KANDA 1 1 , 720 3 , 809 T. KARTHIKEYA N 1 1 , 720 3 , 80 9 TO T A L 23 , 440 7 , 618 3. IT WAS SUBMITTED BY THE LD. AR OF ASSESSEE THAT ASSESSEES GROUND NO.1 IS GENERAL AND HE FURTHER SUBMITTED THAT THE I SSUE REGARDING NON- ISSUES OF NOTICE U/S. 143(2) OF THE ACT AND TIME BA RRING OF THE ASSESSMENT ORDER WERE RAISED BEFORE THE CIT (APPEALS) ALSO BUT THERE IS NO DECISION OF LD. CIT (APPEALS) ON THESE ASPECTS OF THE MATTER AN D HENCE, THE ENTIRE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE L D. CIT (APPEALS) FOR FRESH DECISION. 4. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF LD. CIT (APPEALS). ITA NO.1067/BANG/2016 PAGE 4 OF 5 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND THAT IN PARA 5 OF HIS ORDER, THE LD. CIT(APPEALS) HAS NOTED AND REPRODUCE D THE CONTENTIONS IN THE ASSESSEES LETTER DATED 8.2.2016 CONTAINING WRI TTEN SUBMISSIONS FILED BEFORE HIM AND IN THAT, IT IS SPECIFICALLY SUBMITTE D BY THE ASSESSEE BEFORE THE CIT(APPEALS) THAT ASSESSEE HAD NOT RECEIVED ANY OF THE NOTICES U/S. 143(2) OR 142(1) OR 144, BUT IN SPITE OF THAT, IN T HE SUBSEQUENT PARAS OF THE ORDER OF LD. CIT(APPEALS), THERE IS NO DECISION OF LD. CIT(APPEALS) ON THIS ASPECT OF THE MATTER. IT IS ALSO THE CLAIM OF ASSE SSEE THAT THE ASSESSMENT ORDER WAS TIME BARRED BECAUSE THE SAME WAS SERVED O N THE ASSESSEE ON 13.8.2013 WHICH IS WELL BEYOND THE TIME LIMIT PRESC RIBED UNDER THE ACT. ON THIS ASPECT ALSO, THERE IS NO DECISION OF CIT (A). HENCE I FEEL IT PROPER TO RESTORE THE ENTIRE MATTER BACK TO THE FILE OF LD. C IT (APPEALS). I ORDER ACCORDINGLY. THE ENTIRE MATTER IS RESTORED TO THE FILE OF LD. CIT(APPEALS) WITH A DIRECTION THAT HE SHOULD FIRST DECIDE ON THI S ASPECT AS TO WHETHER ANY VALID NOTICE U/S. 143(2) WAS ISSUED AND SERVED BY T HE AO ON THE ASSESSEE AND IF IT IS FOUND THAT NO SUCH VALID NOTICE WAS IS SUED AND SERVED ON THE ASSESSEE WITHIN THE PRESCRIBED TIME, THEN THE ASSES SMENT U/S. 143(3) OR 144 IS NOT VALID AND NO OTHER ASPECT OF THE MATTER WILL BE REQUIRED TO BE DECIDE AGAIN. BUT IF IT IS FOUND THAT PROPER AND V ALID NOTICE U/S. 143(2) WAS SERVED ON THE ASSESSEE WITHIN THE PRESCRIBED TIME, THEN THE CIT (APPEALS) HAS TO DECIDE THIS ASPECT OF THE MATTER AS TO WHETH ER ASSESSMENT ORDER IS TIME BARRED OR NOT AND IF IT IS FOUND THAT THE SAME IS NOT TIME BARRED ALSO, ITA NO.1067/BANG/2016 PAGE 5 OF 5 THEN HE SHOULD DECIDE THE ISSUE AFRESH REGARDING TH E VALIDITY OF VARIOUS ADDITIONS MADE BY THE AO. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 8 TH DAY OF SEPTEMBER, 2016. SD/- (A.K. GARODIA ) ACCOUNTANT MEMBER BANGALORE, DATED, THE 8 TH SEPTEMBER, 2016. /D S/ COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.