Suman Kumar , Bangalore V. The Income Tax Officer Ward-5(2)(2), Bangalore

ITA 124/BANG/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3612 (ITAT-BANGALORE)
• Duration Of Justice: 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 10-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO. 124/BANG/2018 ASSESSMENT YEAR : 20 09 - 1 0 SHRI SUMAN KUMAR, C/O. SHA BHUTAJI MISRIMAL & SONS, AVENUE ROAD, BENGALURU 560 002. PAN : ABJPS 4238 A VS. THE INCOME TAX OFFICER, WARD 2(2), BENGALURU. NOW : WARD-5(2)(2), BENGALURU. APPELLANT RESPONDENT ASSESSEE BY : SMT. SUMAN LUNKAR, CA REVENUE BY : DR. P. V. PRADEEP KUMAR, ADDL. CIT DATE OF HEARING : 17 .07.2018 DATE OF PRONOUNCEMENT : 21 .08.2018 O R D E R PER SUNIL KUMAR YADAV, JUDICIAL MEMBER THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A), INTER ALIA, ON FOLLOWING GROUNDS: 1.1 THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN PASSING THE ORDER IN THE MANNER PASSED AND IN DISMISSING THE APPEAL FILED BY THE APPELLANT. 1.2 THE ORDER PASSED BY COMMISSIONER OF INCOME TAX (APPEALS) WITHOUT SERVING THE NOTICE OF HEARING ON THE APPELLANT, WITHOUT HEARING THE APPELLANT AND IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE IS BAD IN LAW, VOID AND IS TO BE QUASHED IN TOTO. ITA NO.124/BANG/2018 PAGE 2 OF 3 2. WITHOUT PREJUDICE, THE LEARNED ASSESSING OFFICER HAD ERRED IN PASSING THE ORDER IN THE MANNER PASSED AND IN MAKING AN ADDITION OF RS. 10 LAKHS AS UNEXPLAINED CREDIT IN BANK ACCOUNT AND THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE SAME. 3. THERE WAS NO UNEXPLAINED CREDIT AT ALL IN THE BANK ACCOUNT. THE DEPOSITS IN BANK ACCOUNT ARE FULLY EXPLAINABLE. THE ADDITIONS HAVING BEEN MADE ONLY ON PRESUMPTION AND SURMISES IS TO BE DELETED IN ENTIRETY. 4. THE LEARNED ASSESSING OFFICER HAS ALSO ERRED IN LEVYING INTEREST U/S. 234B AND 234C OF THE I.T. ACT, 1961. THE APPELLANT DENIES THE LIABILITY TO PAY INTEREST. THE INTEREST AS LEVIED IS TO BE DELETED. 5. IN VIEW OF THE ABOVE AND ON OTHER GROUNDS TO BE ADDUCED AT THE TIME OF HEARING IT IS REQUESTED THAT THE IMPUGNED ORDER BE QUASHED OR AT LEAST THE ADDITION AS MADE BE DELETED AND INTEREST BE DELETED. 2. DURING THE COURSE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION THAT CIT(A) HAS DISPOSED OFF THE APPEAL EX-PARTE AGAINST THE ASSESSEE WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT WAS FURTHER CONTENDED THAT CIT(A) HAD DISMISSED THE APPEAL IN LIMINI WHEREAS HE HAS NO POWER TO DO SO. THE CIT(A) IS REQUIRED TO ADJUDICATE THE APPEAL ON MERIT EVEN IF NONE APPEARED BEFORE HIM ON BEHALF OF THE ASSESSEE. THEREFORE, IN THE INTEREST OF JUSTICE, ORDER OF THE CIT(A) MAY BE SET ASIDE AND MATTER MAY BE RESTORED BACK TO HIS FILE FOR THE ADJUDICATION OF THE APPEAL ON MERIT. THE LEARNED DR PLACED RELIANCE UPON THE ORDER OF THE CIT(A). 3. HAVING CAREFULLY EXAMINED THE ORDER OF CIT(A), WE FIND THAT CIT(A) HAS DISMISSED THE APPEAL IN LIMINI WHEREAS HE HAS NO POWER TO DO SO AS PER INCOME TAX ACT. CIT(A) IS REQUIRED TO ADJUDICATE THE APPEAL ON MERIT EVEN IF NONE APPEARED ON BEHALF OF THE ASSESSEE. THEREFORE, WE SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER TO ITA NO.124/BANG/2018 PAGE 3 OF 3 HIS FILE WITH A DIRECTION TO ADJUDICATE THE APPEAL ON MERIT AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 21 ST DAY OF AUGUST, 2018. SD/- SD/- (A. K. GARODIA) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE. DATE: 21 ST AUGUST, 2018. /NS/ COPY TO: 1. APPELLANTS 2. RESPONDENTS 3. CIT 4. DR 5. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY ITAT, BANGALORE