Sri Kushal Raj D Oswal, Bijapur V. Assistant Commissioner of Income tax, Bijapur

ITA 1150/BANG/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0291 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 15-06-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 10-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SWAPNA DAS JT
• Assessee Lawyers: PREETHI PATIL
• Keywords: Opportunity of being heard
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC C BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER ITA NO.1150/BANG/2014 ASSESSMENT YEAR : 2004-05 SHRI KUSHALRAJ D. OSWAL, PROP: HEMENDRA KIRANA BHANDAR, KIRANA MERCHANT, KIRANA BAZAR, BIJAPUR. PAN: AABPO 9185E VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1, BIJAPUR. APPELLANT RESPONDENT APPELLANT BY : MS. PREETHI PATIL, ADVOCATE RESPONDENT BY : SMT. SWAPNA DAS, JT. CIT(DR) DATE OF HEARING : 01.07.2016 DATE OF PRONOUNCEMENT : 05.07.2016 O R D E R THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 07.08.2014 OF THE CIT(APPEALS), BELGAUM FOR THE ASS ESSMENT YEAR 2004-05 INTER ALIA ON THE FOLLOWING GROUNDS:- 1. THE ORDER OF THE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS) IS OPPOSED TO LAW AND FACTS OF THE CASE. 2. THE HON'BLE C1T(A) OUGHT TO HAVE HELD THAT THE A DDITION OF RS.21,24,207/- U/S 69 OF THE ACT MADE BY THE ASS ESSING OFFICER ON THE BASIS OF AN ORDER U/S 263 IS BAD IN LAW. 3. THE HON'BLE CIT(A) OUGHT TO HAVE APPRECIATED THA T THE APPELLANT HAD TO OBTAIN PURCHASE BILLS (NOT ACCOUNT ED) FROM THE ITA NO.1150/BANG/2014 PAGE 2 OF 4 SALES TAX AUTHORITIES; HENCE WAS NOT IN A POSITION TO PRODUCE THE SAME BEFORE THE ASSESSING AUTHORITY. 4. THE HON'BLE CIT(A) ERRED IN DOUBTING THE GENUINE NESS OF THE PURCHASE BILLS PRODUCE BEFORE HIM AS THE SAME W ERE OBTAINED FROM THE SALES TAX OFFICER. 5. ALTERNATIVELY AND WITHOUT PREJUDICE THE HON'BLE CIT(A) OUGHT TO HAVE GIVEN THE BENEFIT OF TELESCOPING AND PEAK INVESTMENTS. 6. THE APPELLANT CRAVES FOR LEAVE TO ADD TO DELETE FROM OR AMEND THE GROUNDS OF APPEAL. 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL F OR THE ASSESSEE HAS INVITED MY ATTENTION TO THE FACT THAT THIS APPEAL E MANATES FROM THE ASSESSMENT ORDER PASSED CONSEQUENT TO THE ORDER OF THE CIT PASSED U/S. 263 OF THE ACT. THE ORDER OF THE CIT WAS APPROVED BY THE TRIBUNAL AND LATER ON THE ASSESSEE PREFERRED AN APPEAL BEFORE TH E HON'BLE HIGH COURT OF KARNATAKA AND THE HONBLE HIGH COURT VIDE ITS JUDGM ENT DATED 13.6.2016 IN ITA NO.6005 OF 2012 SET ASIDE THE ORDER OF THE TRIB UNAL AND REMANDED THE MATTER BACK TO THE ASSESSING OFFICER, TO ADJUDICATE THE ISSUE AND ALSO ENABLE THE ASSESSEE TO PRODUCE RELEVANT MATERIAL TO PUT FORTH HIS CASE AS SOUGHT TO BE URGED. 3. SINCE THE ORDER OF THE TRIBUNAL CONFIRMING THE O RDER PASSED U/S. 263 WAS SET ASIDE, CONSEQUENT ORDER PASSED BY THE A O WOULD BECOME INVALID AND DESERVES TO BE QUASHED. SIMILARLY, THE CONSEQUENTIAL PROCEEDINGS ARISING OUT OF THE CONSEQUENTIAL ASSESS MENT ORDER ALSO DO NOT SURVIVE. HOWEVER, SINCE THE HONBLE HIGH COURT HAS ALSO RESTORED THE ITA NO.1150/BANG/2014 PAGE 3 OF 4 MATTER BACK TO THE ASSESSING OFFICER TO ADJUDICATE THE ISSUES IN THE TERMS INDICATED IN THE JUDGMENT, THE RIGHT COURSE FOR THE TRIBUNAL IN THIS PROCEEDINGS IS ONLY TO SEND THE MATTER BACK TO THE ASSESSING OFFICER TO READJUDICATE THE ISSUE AFRESH IN LIGHT OF THE DIREC TIONS OF THE HONBLE HIGH COURT. A COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KARNATAKA IS PLACED ON RECORD AND THE PROPOSITION AS SUGGESTED B Y THE LD. AR WAS NOT OBJECTED TO BY THE REVENUE. 4. KEEPING IN VIEW THE TOTALITY OF THE FACTS AND CI RCUMSTANCES OF THE CASE, I SET ASIDE THE ORDER OF THE CIT(APPEALS) AND RESTORE THE MATTER TO THE ASSESSING OFFICER TO ADJUDICATE THE IMPUGNED ISSUE AFRESH, IN THE LIGHT OF THE DIRECTIONS OF THE HON'BLE HIGH COURT OF KARNATA KA, AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 5 TH DAY OF JULY, 2016. SD/- (SUNIL KUMAR YADAV ) JUDICIAL MEMBER BANGALORE, DATED, THE 5 TH JULY, 2016. /D S/ ITA NO.1150/BANG/2014 PAGE 4 OF 4 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.