M/s Swamy Shivananda tirtha Trust , Davangere V. The Assistant Commissioner of Income TAx Circle-1 , Davangere

ITA 1159/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5927 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 22 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 01-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 09-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABIRAMA KARTHIKEYAN IRS
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-B BENCH : BANGALORE BEFORESHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 1159/BANG/2018 ASSESSMENT YEAR : 2012 - 13 M/S. SWAMY SHIVANANDA TIRTHA TRUST, OMKARMAT FORT, TEMPLE ROAD, HARIHAR, DAVANGERE DIST. PAN: AAJTS4340Q VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1, DAVANGERE. APPELLANT RESPONDENT APPELLANT BY : SHRI RAVISHANKAR, ADVOCATE RESPONDENT BY : SHRI ABI RAMA KARTHIKEYAN, IRS (DR) DATE OF HEARING : 01 .0 5 .2018 DATE OF PRONOUNCEMENT : 04 .0 5 .2018 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE WHICH IS DIREC TED AGAINST THE ORDER OF LD. CIT(A), DAVANGERE, DATED 20.02.2018 FOR ASSESSM ENT YEAR 2012-13. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPELLANT, ARE OPPOSED TO LAW, EQUITY, WEIGHT O F EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED CIT[A] IS NOT JUSTIFIED IN DISPOSING OFF THE APPEAL WITHOUT ALLOWING SUFFICIENT AND REAL OPPORTUNITY TO THE APPELLANT TO REPRESENT ITS CASE AND CONCLUDING THAT THE APPELLAN T IS NOT INTERESTED IN PROSECUTING THE APPEAL ERRONEOUSLY AND IN GROSS VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND CONSEQUENTLY THE IMPUGNED ORDER PASSED DESERVES TO BE CANCELLED. 3. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT[ A] IS NOT JUSTIFIED IN HOLDING THAT THE APPELLANT REQUIRES TO BE ASSESSED AS AN AOP WITHOUT APPRECIATING THAT THE APPELLANT WAS SUBSEQUENTLY GR ANTED ITA NO. 1159/BANG/2018 PAGE 2 OF 3 REGISTRATION WITH EFFECT FROM 01/04/2012 AND CONSEQ UENTLY, THE APPELLANT WAS REQUIRED TO BE ASSESSED IN THE STATUS OF 'TRUST' AFTER ALLOWING EXEMPTION U/S 11 OF THE ACT UNDER THE FACT S AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 4. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGE D AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLA NT MAY BE AWARDED COSTS IN PROSECUTING THE APPEAL AND ALSO OR DER FOR THE REFUND OF THE INSTITUTION FEES AS PART OF THE COSTS. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR O F ASSESSEE THAT THE IMPUGNED ORDER OF CIT(A) IS EX-PARTE QUA THE ASSESSEE. REGA RDING THE REASONS FOR NON- APPEARANCE BEFORE CIT(A), IT WAS SUBMITTED BY LD. A R OF ASSESSEE THAT ONLY ONE DATE OF HEARING WAS FIXED BY CIT(A) I.E. 20.02. 2018 AS NOTED BY HIM IN PARA 3 OF HIS ORDER. HE SUBMITTED THAT THE ASSESSE E IS RESIDING IN DAVANGERE BUT THE AR OF ASSESSEE WAS RESIDING IN BANGALORE AN D HENCE, THERE WAS SOME DELAY IN COMMUNICATION WITH THE AR OF ASSESSEE. BE CAUSE OF THIS REASON, THE AR OF ASSESSEE COULD NOT APPEAR BEFORE CIT(A) ON TH E DATE OF HEARING FIXED BY CIT(A). HE SUBMITTED THAT IN THE INTEREST OF JUSTI CE, THE MATTER MAY BE RESTORED BACK TO THE FILE OF CIT(A) FOR FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO ASSESSEE. IF THIS IS DONE, HE UN DERTAKES THAT PROPER COMPLIANCE WILL BE MADE BEFORE CIT(A). THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A). 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND FORCE IN THE SUBMISSIONS OF LD. AR OF ASSESSEE BECAUSE I FIND THAT AS PER THE ORDER OF CIT(A), ONLY ONE DATE OF HEARING WAS FIXED BY HIM I.E. 20.02.2018. NONE COU LD APPEAR BEFORE CIT(A) ON THAT DATE AND REGARDING REASONS FOR NON-APPEARANCE, IT WAS SUBMITTED BEFORE ME THAT ASSESSEE IS BASED IN DAVANGERE WHEREAS LD. AR OF ASSESSEE IS BASED IN BANGALORE AND BECAUSE OF THIS REASON, THERE WAS SOME DELAY IN COMMUNICATING THE DATE OF HEARING TO LD. AR OF ASSE SSEE. CONSIDERING ALL THESE FACTS, I FEEL THAT IN THE INTEREST OF JUSTICE, ONE MORE OPPORTUNITY SHOULD BE PROVIDED TO ASSESSEE AND HENCE, I SET ASIDE THE ORD ER OF CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECISION AFTER PR OVIDING REASONABLE OPPORTUNITY ITA NO. 1159/BANG/2018 PAGE 3 OF 3 OF BEING HEARD TO ASSESSEE. IN VIEW OF THIS DECISI ON, NO ADJUDICATION IS CALLED FOR REGARDING THE MERIT OF THE CASE AT THE PRESENT STAGE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 04 TH MAY, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.