ITO, Bangalore V. Sri. AShok Tripathy, Bangalore

ITA 1112/BANG/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7402 (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; 144

Judgement Text

ITA.1112/BANG/2011 P AGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BEFORE SHRI. N. BARATHVAJA SANKAR, VICE PRESIDENT I.T.A NO.1112/BANG/2011 (ASSESSMENT YEAR : 2005-06) INCOME-TAX OFFICER, WARD 14(5), BANGALORE .. APPELLANT V. SHRI. ASHOK TRIPATHY, C/O. WIPRO LTD., NO.30, MISSION ROAD, I MAIN, S. R. NAGAR, BANGALORE .. RESPONDENT PAN AAACW0387R APPELLANT BY : SMT. SUSAN THOMAS JOSE, JT.CIT RESPONDENT BY : NONE 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.19.0 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 ITA.1112/BANG/2011 P AGE - 2 FURNISH ANY EVIDENCE, WHETHER ORAL OR DOCUMENTARY, OTHER 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.' 03. AT THE TIME OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE. HOWEVER, THE LEARNED DR WAS REITERATING THE GROUND OF APPEAL AS HIS ARGUMENT. 04. I HAVE HEARD THE LEARNED DR AND ALSO CONSIDERED THE FACTS AND MATERIALS ON RECORD INCLUDING THE ASSESSMENT ORDER AND THE APPELLATE ORDER. IT APPEARS THAT THE ASSESSEE IS A SALARIED EMPLOYEE AND THE ASSESSING OFFICER HAS PASSED AN EX-PARTE ORDER U/S. 144 OF THE INCOME- TAX ACT, 1961, BY MAKING ADDITION OF RS.2,49,255/- U/S.69 OF THE ACT (BEING CREDIT CARD PAYMENTS) AND LEVIED A TAX OF RS .48,776/- INCLUDING EDUCATION CESS OF RS.975/-. THAT APART, HE LEVIED INTEREST U/SS.234A, ITA.1112/BANG/2011 P AGE - 3 234B AND 234C TO THE EXTENT OF RS.32,685/-. TOTALIN G TO RS.82,436/-. I FIND THAT THE TAX EFFECT ON THE DISPUTED ISSUE IS LESS THAN RS.3 LAKHS. HOWEVER, THE LEARNED DR SUBMITTED THAT HE HAS TO VE RIFY WHETHER THIS FALLS UNDER ANY OF THE EXCEPTIONS MENTIONED IN THE CBDT INSTRUCTION NO.3 OF 2011 AND HENCE, HE SOUGHT FOR TIME. HOWEVE R, I FIND THAT THE ISSUE IN QUESTION IS ONLY ADDITION OF CREDIT CARD P AYMENTS FOR WANT OF FILING OF DETAILS AND IN MY CONSIDERED VIEW, THIS W OULD NOT FALL UNDER ANY OF THE EXCEPTIONS MENTIONED IN INSTRUCTION NO.3 OF 2011. HENCE, I REJECT THE ADJOURNMENT SOUGHT FOR AND PROCEED TO CO NSIDER 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 LAK HS VIDE INSTRUCTION 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 ITA.1112/BANG/2011 P AGE - 4 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 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