Income Tax Officer Ward-2, Haveri V. M/s Haveri Urban Development Authority , Haveri

ITA 1123/BANG/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7333 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 22-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PADMA MEENAKSHI
• Keywords: Tax effect
• Section: 43B; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER A ND SHRI GEORGE GEORGE K, JUDICIAL MEMBER ITA NO S . 1 123 TO 1127 / BANG/201 7 ASSESSMENT YEAR S : 20 08 - 09 TO 2012 - 13 THE INCOME TAX OFFICER, WARD 2, HAVERI. VS. M/S. HAVERI URBAN DEVELOPMENT AUTHORITY, G GMAGAVI CHAMBERS, P B ROAD, HAVERI. PAN: AAALH 0188G APPELLANT RESPONDENT ASSESSEE BY : NONE REVENUE BY : SMT. PADMA MEENAKSHI, JCIT (DR) DATE OF HEARING : 31 . 10 .2017 DATE OF PRONOUNCEMENT : 03 .1 1 .2017 O R D E R PER BENCH; ALL THESE FIVE APPEALS ARE FILED BY THE REVENUE WHI CH ARE DIRECTED AGAINST SEPARATE ORDERS OF THE LEARNED CIT (A), DAVANGERE D ATED 31.01.2017 FOR ASSESSMENT YEARS 2008-09 TO 2012-13. 2. ALL THESE APPEALS WERE FIXED FOR HEARING ON 31.1 0.2017 AND THE NOTICE OF HEARING WERE SENT TO THE ASSESSEE BY RPAD AND THE S AME HAS BEEN SERVED ON THE ASSESSEE AS PER THE ACKNOWLEDGEMENT AVAILABLE O N RECORD. IN SPITE OF THIS, NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE APPO INTED DATE OF HEARING AND THERE IS NO REQUEST FOR ADJOURNMENT AND THEREFORE, WE HAVE HEARD THESE APPEALS OF THE REVENUE EX-PARTE QUA THE ASSESSEE. 3. AT THE VERY BEGINNING, IT WAS POINTED OUT BY THE BENCH THAT THREE APPEALS OF REVENUE FOR ASSESSMENT YEARS 2008-09 TO 2010-11 ARE NOT MAINTAINABLE BECAUSE IN THESE THREE APPEALS, THE TAX EFFECT IN E ACH YEAR IS LESS THAN RS. 10 ITA NOS. 1123 TO 1127/BANG/2017 PAGE 2 OF 4 LAKHS AND THEREFORE, AS PER THE LATEST BOARD INSTRU CTION, ANY APPEAL FILED BY THE REVENUE BEFORE THE TRIBUNAL IN WHICH THE TAX EFFECT IS LESS THAN RS. 10 LAKHS IS NOT MAINTAINABLE. IN REPLY, LD. DR OF REVENUE HAD NOTHING TO SAY. HENCE THESE THREE APPEALS OF REVENUE FOR ASSESSMENT YEARS 2008- 09 TO 2010-11 ARE DISMISSED BECAUSE OF LOW TAX EFFECT BECAUSE IT IS S EEN THAT IN ASSESSMENT YEAR 2008-09, THE ADDITION MADE BY THE AO IS OF RS. 18,2 0,276/- ONLY AND SIMILARLY, IN ASSESSMENT YEAR 2009-10, THE ADDITION MADE BY TH E AO IS ONLY RS. 16,10,586/- AND IN ASSESSMENT YEAR 2010-11, THE ADD ITION MADE BY THE AO IS RS. 15,87,671/- AND THEREFORE, THE TAX EFFECT IN EA CH YEAR CANNOT BE MORE THAN RS. 10 LAKHS. 4. IN THE RESULT, THESE THREE APPEALS OF REVENUE FO R ASSESSMENT YEARS 2008-09 TO 2010-11 ARE DISMISSED BECAUSE OF LOW TAX EFFECT. 5. NOW WE TAKE UP THE APPEAL OF THE REVENUE FOR ASS ESSMENT YEARS 2011-12 AND 2012-13 IN WHICH THE TAX EFFECT IS MORE THAN RS. 10 LAKHS IN EACH OF THESE TWO YEARS.REGARDING THESE TWO APPEALS, IT WAS THE FIRST SUBMISSION OF THE LD. DR OF REVENUE THAT THE ASSESSMENT ORDER PASSED BY THE AO IS U/S. 144 AND BEFORE THE CIT(A), THE ASSESSEE HAS MADE VARIOUS SUBMISSIONS A ND THE CIT(A) HAS DECIDED THIS ISSUE BASED ON THOSE SUBMISSIONS WITHO UT OBTAINING ANY REMAND REPORT FROM THE AO AND THEREFORE, THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF CIT(A) FOR FRESH DECISION AFTER OBTAINING REMAND REPORT FROM THE AO. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF LD. DR OF REVENUE AND FIND FORCE IN HER SUBMISSIONS. WE FIND THAT IN BOTH THE YEARS, THE A SSESSMENT ORDER HAS BEEN PASSED BY THE AO U/S. 144 AGAINST WHICH THE ASSESSE E FILED APPEAL BEFORE THE CIT (A). IT IS NOTED BY CIT(A) THAT VARIOUS SUBMIS SIONS WERE MADE BEFORE HIM TO THE EFFECT THAT THE ASSESSEE IS A LOCAL AUTHORIT Y ESTABLISHED UNDER THE KARNATAKA URBAN DEVELOPMENT ACT, 1987 AND THE MAIN PURPOSE IS TO PROVIDE CIVIL AMENITIES AND IMPLEMENTATION OF MASTER PLAN F OR THE BALANCED DEVELOPMENT OF CITY. IT IS ALSO SUBMITTED BEFORE C IT (A) THAT BY VIRTUE OF STATUTORY POWERS, THE ASSESSEE HAS COLLECTED BETTER MENT LEVY, SLUM CESS, DEVELOPMENT CESS ETC WHICH ARE EARMARKED FOR DEVELO PMENT WORKS. IT IS ALSO SUBMITTED BEFORE THE CIT (A) BY LD. AR OF ASSESSEE THAT THERE IS NO MANDATE TO ITA NOS. 1123 TO 1127/BANG/2017 PAGE 3 OF 4 DEPOSIT THESE LEVIES AND CESS TO THE STATE GOVERNME NTS OR AUTHORITIES DESIGNATED TO AND THEREFORE, THESE ITEMS ARE NOT IN THE NATURE OF TAX AND DUTIES WITHIN SECTION 43B OF THE I T ACT. IN OUR CONSIDER ED OPINION, THESE ARE FACTUAL SUBMISSIONS WHICH SHOULD HAVE BEEN EXAMINED BY THE AO BUT SINCE NONE APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE AO AN D THE ASSESSMENT ORDER IS PASSED BY THE AO U/S. 144 AND HENCE, THE SAME COULD NOT BE EXAMINED BY THE AO AND THEREFORE, THE CIT (A) SHOULD HAVE OBTAINED REMAND REPORT FROM THE AO ON THESE FACTUAL ASPECTS BASED ON THOSE SUBMISSIONS . THIS WAS NOT DONE BY CIT (A). HENCE, WE SET ASIDE THE ORDER OF CIT (A) F OR THESE YEARS AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECISION AFTE R OBTAINING REMAND REPORT FROM AO ON ALL ASPECTS. AFTER OBTAINING REMAND REPORT F ROM AO, THE CIT(A) SHOULD PASS ORDER AS PER LAW AFTER PROVIDING ADEQUATE OPPO RTUNITY OF BEING HEARD TO BOTH SIDES. IN VIEW OF THIS DECISION, THE ISSUE ON MERIT DO NOT CALL FOR ANY ADJUDICATION AT THIS STAGE. 7. IN THE RESULT, THE APPEALS OF REVENUE FOR ASSESS MENT YEARS 2011-12 AND 2012- 13 ARE ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE COMBINED RESULT THE APPEALS OF REVENUE FO R ASSESSMENT YEARS 2008-09 TO 2010-11 ARE DISMISSED AND THE REMAINING TWO APPE ALS FOR ASSESSMENT YEARS 2011-12 AND 2012-13 ARE ALLOWED FOR STATISTICAL PUR POSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (GEORGE GEORGE K) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 03 RD NOVEMBER, 2017. /MS/ ITA NOS. 1123 TO 1127/BANG/2017 PAGE 4 OF 4 COPY TO: 1. APP ELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.