ACIT, Bangalore V. Brig. Edamund Krishnamurthy, Bangalore

ITA 1100/BANG/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7400 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 18-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUSAN THOMAS JOSE JT
• Keywords: Tax effect
• Section: 234B

Judgement Text

ITA.1100/BANG/2011 PA GE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BEFORE SHRI. N. BARATHVAJA SANKAR, VICE PRESIDENT I.T.A NO.1100/BANG/2011 (ASSESSMENT YEAR : 2005-06) INCOME-TAX OFFICER, WARD 14(5), BANGALORE .. APPELLANT V. BRIG. EDAMANAL KRISHA MURTHY, NO.41/7, 13TH CROSS, HAL II STAGE, INDIRANAGAR, BANGALORE 560 008 .. RESPONDENT PAN ACUPK5983G APPELLANT BY : SMT. SUSAN THOMAS JOSE, JT.CIT RESPONDENT BY : SHRI. H. R. SHENOY, CA HEARD ON : 12.03.2012 PRONOUNCED ON : 12.03.2012 O R D E R THIS IS AN APPEAL PREFERRED BY THE REVENUE FOR THE ASSESSMENT YEAR 2005-06 AGAINST THE APPELLATE ORDER DATED.27.0 9.2011, OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-II, BANGALORE. 02. THE EFFECTIVE GROUND OF APPEAL IS GROUND NO.2 W HICH READS AS UNDER : '2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS ) OUGHT TO HAVE NOTED THAT THE ASSESSEE IS NOT ENTITL ED TO FURNISH ANY EVIDENCE, WHETHER ORAL OR DOCUMENTARY, OTHER ITA.1100/BANG/2011 PA GE - 2 THAN THE EVIDENCE FURNISHED BEFORE THE ASSESSING OF FICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE CIRCUMSTANCES MENTIONED IN CLAUSE (A) TO (D) OF RUL E 46A(1) DOES NOT EXIST IN THE INSTANT CASE OF THE ASSESSEE. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) OUGHT TO HAVE NOTED THAT HE SHALL NOT TAKE INTO ACCOUNT ANY EVIDENCE PRODUCED BY THE APPELLANT UNLESS THE ASSESSING OFFI CER HAS BEEN ALLOWED A REASONABLE OPPORTUNITY, AS PER PROVI SIONS UNDER RULE 46A(3) OF THE INCOME TAX RULES, 1962 IN RESPECT OF THE EVIDENCE FURNISHED BY THE ASSESSEE BEFORE HI M. SUCH OPPORTUNITY WAS NOT PROVIDED TO THE ASSESSING OFFIC ER IN THE INSTANT CASE. THEREFORE THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS) IS OPPOSED TO LAW AND ON THE F ACTS OF THE CASE.' 04. I HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO CON SIDERED THE FACTS AND MATERIALS ON RECORD INCLUDING THE ASSESSMENT OR DER AND THE APPELLATE ORDER. IT APPEARS THAT THE ASSESSEE IS A PENSIONER WHO RETIRED AS A BRIGADIER FROM THE ARMED FORCES AND THE ASSESS ING OFFICER HAS PASSED AN EX-PARTE ORDER U/S.144 OF THE INCOME-TAX ACT, 1961, BY MAKING ADDITION OF RS.2,36,000/- U/S.69 OF THE ACT (BEING INVESTMENT IN MUTUAL FUND) AND LEVIED A TAX OF RS.55,800/-, ON WHICH EDUCATION CESS WAS RS.1116/- AND INTEREST U/SS.234A, 234B AND 234C TO THE EXTENT OF RS.36,874/-, TOTALING TO RS.93,790/-. I FIND THAT THE TAX EFFECT ON THE DISPUTED ISSUE IS LESS THAN RS.3 LAKH S. HOWEVER, THE ITA.1100/BANG/2011 PA GE - 3 LEARNED DR SUBMITTED THAT HE HAS TO VERIFY WHETHER THIS FALLS UNDER ANY OF THE EXCEPTIONS MENTIONED IN THE CBDT INSTRUCTION NO.3 OF 2011 AND HENCE, HE SOUGHT FOR TIME. HOWEVER, I FIND THA T THE ISSUE IN QUESTION IS ONLY ADDITION OF INVESTMENT IN MUTUAL F UND FOR WANT OF DETAILS AND IN MY CONSIDERED VIEW, THIS WOULD NOT F ALL UNDER ANY OF THE EXCEPTIONS MENTIONED IN INSTRUCTION NO.3 OF 2011. HENCE, I REJECT THE ADJOURNMENT SOUGHT FOR AND PROCEED TO CONSIDER THE MATTER AS FALLING UNDER THE INSTRUCTION NO.3 OF 2011. IN OTHER WORDS , I AM DISMISSING THE REVENUE'S APPEAL AS NON-MAINTAINABLE SINCE THE TAX EFFECT ON THE DISPUTED AMOUNT IS FAR BELOW RS.3 LAKHS VIDE INSTRU CTION NO.3 OF 2011. 5. IN THIS CONNECTION, I AM TO MENTION THAT THE HON 'BLE KARNATAKA HIGH COURT ALSO, IN THE CASE OF M/S. RANKA N RANKA IN ITA NO.3191/2005, HAS DISMISSED THE REVEMUE'S APPEAL SI NCE THE TAX EFFECT WAS LESS THAN THE SPECIFIED AMOUNT IN THE CB DT INSTRUCTION FOR FILING APPEAL BEFORE THE HIGH COURT. IN THAT, IT W AS MENTIONED BY THE HON'BLE HIGH COURT THAT THE SAID INSTRUCTION WAS AP PLICABLE TO PENDING PROCEEDINGS ALSO. HOWEVER, IN THIS CASE ON HAND, T HE APPEAL HAS BEEN FILED AFTER THE DATE OF INSTRUCTION, I.E., 09.02.20 11, AND HENCE SQUARELY THE INSTRUCTION APPLIES TO THE CASE AND THEREFORE, I DISMISS THE APPEAL OF THE REVENUE FOLLOWING THE SAME. HOWEVER, IF THE REVENUE FINDS THAT THIS APPEAL FALLS UNDER ANY OF THE EXCEPTIONS MENTIONED IN THE ITA.1100/BANG/2011 PA GE - 4 INSTRUCTION, IT IS FREE TO APPROACH THE TRIBUNAL TO REVIVE THE APPEAL BY FILING A MISCELLANEOUS APPLICATION. 6. IN THE RESULT, REVENUE'S APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE END OF HE ARING ON 12TH MARCH, 2012. SD/ - (N. BARATHVAJA SANKAR) VICE PRESIDENT