Suresh Kumar T.S., Bangalore V. ITO, Bangalore

ITA 1505/BANG/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 51393 (ITAT-BANGALORE)
• Duration Of Justice: 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 27-10-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 24-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUSAN THOMAS JOSE
• Assessee Lawyers: M SRIDHAR REDDY
• Keywords: Opportunity of being heard; Set aside; Audi alteram partem
• Section: 40(a)(ia); 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH B BEFORE SHRI N.K.SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE GEORGE K, JUDICIAL MEMBER I.T.A. NO.1505/BANG/2010 (ASSESSMENT YEAR : 2006-07) SHRI T.S. SURESH KUMAR, NO.507, 5 TH FLOR, NORTH BLOCK REAR WING, MANIPAL CENTRE, BANGALORE-50 042 PAN AFXPS7006J VS. INCOME TAX OFFICER, WARD 1(2), BANGALORE. APPELLANT RESPONDENT. APPELLANT BY : MR.M. SRIDHAR REDDY. RESPONDENT BY : SMT. SUSAN THOMAS JOSE. DATE OF HEARING : 12.12.2011. DATE OF PRONOUNCEMENT : 12.12.2011. O R D E R PER N.K. SAINI, A.M. : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORD ER DATED 13.10.2010 BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I, BANGALORE. THE FOLLOWING EFFECTIVE GROUNDS HAVE BEEN RAISED IN THIS APPEAL : 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S)-I IS NOT JUSTIFIED IN DISMISSING THE APPEAL FILED AGAINST TH E ORDER OF THE ASSESSING OFFICER ON THE GROUND THAT THE APPELLANT IS NOT INTERESTED TO PURSUE THE APPEAL. 2. THE LEARNED ASSESSING OFFICER IS NOT JUSTIFIED IN DISALLOWING 15% OF THE EXPENDITURE AMOUNTING TO RS.1,19,937. 3. THE LEARNED ASSESSING OFFICER IS NOT JUSTIFIED IN REJECTING THE CLAIM OF CONSULTANCY CHARGES PAID/PAYABLE AMOUNTING TO RS .2,34,908. 2 ITA NO.1505/BANG/10 2. THE MAIN GRIEVANCE OF THE ASSESSEE IN THIS APPEA L IS THAT THE LEARNED CIT(A) HAS NOT GIVEN PROPER OPPORTUNITY WHILE DISMISSING THE APPEA L IN LIMINE. 3. THE FACTS OF THE CASE IN BRIEF ARE THAT T HE ASSESSEE FILED RETURN OF INCOME ON 15.6.2006 DECLARING AN INCOME OF RS.6,41,016 WHICH WAS PROCES SED UNDER SECTION 143(1) OF THE INCOME TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT ). LATER ON, THE CASE WAS SELECTED FOR SCRUTINY AND THE ASSESSING OFFICER MADE AN ADDITION OF RS.1,19,937 BY DISALLOWING THE EXPENSES AND ANOTHER ADDITION OF RS.2,34,9 08 WAS MADE UNDER SECTION 40(A)(IA) OF THE ACT. ACCORDINGLY, THE ASSESSMENT WAS FRAMED AT AN INCOME OF RS.9,95,861. ON BEING AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE LEARNED CIT(A) WHO DISMISSED THE APPEAL IN LIMINE BY OBSERVING AS UNDER : AFTER FILING OF THIS APPEAL, THE APPELLANT WAS GI VEN SEVERAL OPPORTUNITIES AS DETAILED ABOVE IN COLUMN NO.10. ON THE DATES OF HE ARING, NONE APPEARED AND ONLY ADJOURNMENT PETITIONS WERE FILED. IN VIEW OF THE ABOVE, IT IS INFERRED THAT THE ASSESSEE IS NOT INTERESTED TO PURSUE THE APPEAL . WITHOUT GOING INTO THE MERITS OF THE CASE AND IN THE LIGHT OF THE DECISION OF THE JURISDICTIONAL TRIBUNAL IN THE CASE OF M/S. GREEN AGRO PACK PRIVATE LIMITED IN ITA NO.61(BANG)/2010, ORDER DATED 20.09.2010 FOR THE A.Y. 2005-06, THE APPEAL F ILED BY THE APPELLANT IS HEREBY DISMISSED. NOW THE ASSESSEE IS IN APPEAL BEFORE US. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE LEARNED CIT(A) HAD NOT PROVIDED A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT WAS STATED THAT THE LEARNED CIT(A) HAS NOT GIVEN DUE AND PROPER OPPORTU NITY TO EXPLAIN THE CASE OF ASSESSEE. IT WAS POINTED OUT THAT WHEN THE CASE WAS FIXED FOR HE ARING ON 14.10.2010, ADJOURNMENT WAS SOUGHT BY THE ASSESSEE BECAUSE THE COUNSEL WAS BUSY IN THE TAX AUDIT, THE LAST DATE FOR TAX AUDIT WAS EXTENDED UPTO 15.10.2010. SO, THERE WAS A GENUINE REASON FOR SEEKING THE 3 ITA NO.1505/BANG/10 ADJOURNMENT. IT WAS CONTENDED THAT THE LEARNED CIT (A) DID NOT DECIDE THE ISSUE ON MERIT, BUT DISMISSED THE APPEAL IN LIMINE. 5. IN HER RIVAL SUBMISSION, THE LD. D. R. SUPPORTE D THE ORDER OF LEARNED CIT(A). 6. AFTER CONSIDERING THE SUBMISSION OF BOTH THE PAR TIES AND MATERIAL ON RECORD, IT IS NOTICED THAT THE LEARNED CIT(A) HAD NOT DECIDED THE APPEAL ON MERIT AND THAT WHILE DISMISSING THE APPEAL IN LIMINE, THE LEARNED CIT(A) SIMPLY STATED THAT THE ASSESSEE WAS NOT INTERESTED TO PURSUE HIS APPEAL, EVEN HE DID NOT DI SCUSS THE CONTENTS OF THE APPLICATION FILED BY THE ASSESSEE FOR SEEKING ADJOURNMENT. THE LEARN ED CIT(A) WITHOUT CONSIDERING THE GENUINENESS OF THE REASONS MENTIONED IN THE ADJOURN MENT APPLICATION, DISMISSED THE APPEAL. IT IS WELL SETTLED THAT NO BODY SHOULD BE CONDEMNED UNHEARD AS PER MAXIM AUDI ALTERAM PARTEM . WE, THEREFORE, CONSIDERING THE TOTALITY OF THE F ACTS DEEM IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER OF THE LEARNED C.I.T. (A) AND REMAND TO HIS FILE TO BE DECIDED ON MERIT IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 12.12.2011.) SD/- SD/- (GEORGE GEORGE) (N.K. SAINI) JUDICIAL MEMBER ACCOUN TANT MEMBER BANGALORE, DATED: 12.12.2011. *REDDY GP 4 ITA NO.1505/BANG/10 COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, -BENCH. 6. GUARD FILE. (TRUE COPY ) BY O RDER ASSTT. REGISTRAR, ITAT, BANGALORE