ITO, Bangalore V. Mahesh G. Shetty, Bangalore

ITA 1498/BANG/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0320 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-06-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 04-05-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 21-11-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR SHANKAR PRASAD
• Assessee Lawyers: S V RAVISHANKAR
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRI BUNAL BANGALORE BENCH B, BANGALORE BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER ITA NO.1498(BANG) 2014 (ASSESSMENT YEAR : 2008-09) THE INCOME TAX OFFICER, WARD-4(1)(3), BANGALORE APPELLANT VS SHRI G. MAHESH G SHETTY, NO.180, 1 ST MAIN, MAHALAKSHMI LAYOUT EXTN. MAHALAKSHMI BANGALORE-560 037 PAN NO.AFQPS9486P RESPONDENT REVENUE BY : DR. SHANKAR PRASAD, JCIT ASSESSEE BY : SHRI S.V.RAVI SHANKAR, ADVOCATE DATE OF HEARING : 04-05-2016 DATE OF PRONOUNCEMENT : 1 7-06-2016 O R D E R PER SHRI A. K. GARODIA, AM: THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORD ER OF THE LD. CIT(A)-II, BANGALORE DATED 21-08-2014 FOR THE ASSES SMENT YEAR 2008- 09. 2. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLL OWING GROUNDS; 1. THE ORDER OF THE LD.CIT(A) IS OPPOSED TO LAW AND FACTS OF THE CASE. ITA NO.1498(BANG)2014 2 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN LAW IN DIRECTING THE AO TO RESTRICT THE DISALLOWANCE TO 50% OF THE AMOUNT OF UNDISCLOSED INVESTMENT AFTER GIVING CREDIT FOR A PERSONAL SUPER VISION AND ADOPTION OF STATE PWD RATES WITHOUT APPRECIATIN G THE FACT THAT THE ASSESSEE HIMSELF HAD ARRIVED AT THE COST OF CONSTRUCTION AS RS.257.82 LAKHS AND THE SUBMISSION BEFORE THE LD.CIT(A) IS ONLY AN AFTERTHO UGHT AND THE SAME IS NOT SUPPORTED BY ANY EVIDENCE TOO, AS ADMITTED BY THE CIT(A). 3. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED A T THE TIME OF HEARING, IT IS PRAYED THAT THE ORDER OF THE CIT(A) IN SO FAR AS IT RELATES TO THE ABOVE GROUNDS MAY BE REVERSED AND HAT OF THE AO MAY BE RESTORED. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR DELETE ANY OF THE GROUNDS MENTIONED ABOVE. 3. IT WAS SUBMITTED BY THE LD. DR OF THE REVENUE T HAT THE ORDER OF THE LD. CIT(A) IS VERY CRYPTIC AND THEREFORE, HIS O RDER SHOULD BE REVERSED AND THAT OF THE AO BE RESTORED AND ALTERNATIVELY, T HE MATTER MAY BE SENT BACK TO THE FILE OF THE LD. CIT(A) FOR A FRESH DECI SION BY WAY OF A SPEAKING ORDER. 4. THE LD. AR OF THE ASSESSEE SUPPORTED THE ORDERS OF THE LD.CIT(A). ITA NO.1498(BANG)2014 3 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT IT IS NOTED BY THE AO ON PAGE NO.2 OF THE ASSESSMENT ORDE R THAT TOTAL COST OF THE CONSTRUCTION AT RS.2,57,82,000/- OUT OF WHICH THE ASSESSEE COULD EXPLAIN THE SOURCE OF INVESTMENT OF RS.1,69,98,383/ - ONLY AND FOR THE REMAINING AMOUNT OF RS.87,83,617/-, THE ASSESSEE CO ULD NOT EXPLAIN THE SOURCE OF INVESTMENT. THIS ISSUE HAS BEEN DECIDED BY THE LD. CIT(A) AS PER PARA-4.4 AT PAGE 11 OF HER ORDER WHEREIN IT WAS HELD THAT SHE IS RESTRICTING THE DISALLOWANCE TO 50% AFTER GIVING CR EDIT FOR THE PERSONAL SUPERVISION AND ADOPTION OF STATE PWD RATES IN ESTI MATING THE COST OF CONSTRUCTION. AT PARA 4.3 SHE STATED THAT THERE IS MERIT IN THE ASSESSEES SUBMISSION, REGARDING CREDIT FOR PERSONAL SUPERVISI ON OF THE CONSTRUCTION AT 15% AND 15% BENEFIT BY CONSIDERING STATE PWD RATES AS AGAINST CPWD RATES. HENCE, IT IS SEEN THAT EVEN TH E CLAIM OF THE ASSESSEE WAS RESTRICTED TO THE EXTENT OF 30%, WHERE AS LD. CIT(A) HAS GRANTED RELIEF OF 50% AND THAT TOO WITHOUT GIVING A NY REASONING AND THEREFORE, WE FEEL IT PROPER THAT THIS MATTER SHOUL D GO BACK TO THE FILE OF THE LD. CIT(A) FOR A FRESH DECISION BY WAY OF A SPE AKING ORDER. HENCE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTOR E THE MATTER BACK TO HIS FILE FOR A FAIR DECISION BY WAY OF A SPEAKING A ND REASONED ORDER AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BO TH SIDES. ITA NO.1498(BANG)2014 4 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (VIJAY PAL RAO) SD/- (A.K. GARODIA) JUDICAL MEMBER AC C OUNTANT MEMBER BANGALORE: D A T E D : 17.06.2016 AM* COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A)-II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER, AR, ITAT, BANGALORE ITA NO.1498(BANG)2014 5 1. DATE OF DICTATION .. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P. S. .. 4 DATE ON WHICH THE ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT .. 5. DATE ON WHICH THE ORDER COMES BACK TO THE SR. P.S. .. 6. DATE OF UPLOADING THE ORDER ON WEBSITE .. 7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO . 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. DATE ON WHICH ORDER DOES FOR XEROX & ENDORSEMENT . 10. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK. 11 THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER. 12 THE DATE ON WHICH THE FILE GOES TO THE DISPATCH SEC TION FOR DISPATCH OF THE TRIBUNAL ORDER 13 DATE OF DISPATCH OF ORDER