DCIT, Bangalore V. M/s Excel Prosoft Pvt. Ltd., Chennai

ITA 1538/BANG/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7601 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 13-06-2017
• Assessment Year: 2004-2005
• Appeal Filed On: 02-12-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: BALAKRISHNAN
• Assessee Lawyers: C P RAMASWAMY
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH B, BANGALORE BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER ITA NO.1538 (BANG) 2014 (ASSESSMENT YEAR : 2004 05) ACIT, CENTRAL CIRCLE 1 (1), BANGALORE APPELLA NT VS M/S EXCEL PROSOFT PVT. LTD., (NOW MERGED WITH M/S KEALAWN TECHNOLOGIES PVT. LTD. ), NO. S 19, TNHB COMPLEX, DOOR NO. 4, LUZ CHURCH ROAD, MYLAPORE, CHENNAI 600004. PAN: AAACE6494M RESPONDENT & C. O. NO. 214/B/2015 IN ITA NO. 1538/B/2014 (ASSESSMENT YEARS : 2004 05) ASSESSEE BY : SHRI C. P. RAMASW AMY, ADVOCATE REVENUE BY : SHRI BALAKRISHNAN, ADDL. CIT DR DATE OF HEARING : 06-09-2017 DATE OF PRONOUNCEMENT : 08-09-2017 O R D E R PER A. K. GARODIA, A. M.: THIS APPEAL IS FILED BY THE REVENUE AND THE C. O. IS FILED BY THE ASSESSEE AND THESE ARE DIRECTED AGAINST THE ORDER O F THE LD. CIT(A) II, CHENNAI DATED 18.06.2014 FOR A. Y. 2004 05. 2. FIRST, WE TAKE UP THE TECHNICAL ASPECT RAISED I N THE C. O. FILED BY THE ASSESSEE BECAUSE IF A TECHNICAL ISSUE IS RAISED BY THE ASSESSEE THEN BEFORE ITA NO.1538/B/2014 & C. O. NO. 214(B)2015 2 DECIDING THE DISPUTE ON MERIT AS RAISED BY THE REVE NUE IN ITS APPEAL, WE FIRST DECIDE THE TECHNICAL ASPECT. IN THE C. O., THE ASSE SSEE HAS RAISED SEVERAL GROUNDS REGARDING THE VALIDITY OF THE REOPENING OF THE ASSESSMENT AND ONE SUCH GROUND BEING GROUND NO. 2 IS THIS THAT THERE I S NO EVIDENCE OF FAILURE OF REGULAR SERVICE OF THE NOTICE U/S 148 AND NO REA SON WAS RECORDED BY THE A. O. REGARDING NECESSITY OF SERVING SUCH NOTICE BY AFFIXTURE AND THEREFORE, IT SHOULD HAVE BEEN HELD BY CIT (A) THAT THE ASSESSMEN T ORDER IS TO BE ANNULLED. 3. IT WAS SUBMITTED BY THE LEARNED AR OF THE ASSESS EE THAT AS PER GROUND NO. 2 RAISED BEFORE THE CIT (A) DULY REPRODUCED BY HIM ON PAGE 2 OF HIS ORDER, THIS ISSUE WAS RAISED BY THE ASSESSEE BEFORE CIT (A) BUT HE HAS NOT DECIDED THIS ASPECT OF THE MATTER. LEARNED DR OF TH E REVENUE ALSO COULD NOT POINT OUT ANY DECISION OF CIT (A) ON THIS ASPECT OF THE MATTER. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT IN FACT, THIS ISSUE WAS RAISED BY THE ASSESSEE BEFORE CIT (A) AND IT WAS NOT DECIDED BY HIM. HENCE, THIS MATTER HAS TO GO BACK TO CIT (A) F OR HIS DECISION ON THIS ASPECT AFTER VERIFYING THE FACTS FROM ASSESSMENT RE CORDS. WE, THEREFORE, SET ASIDE THE ORDER OF CIT (A) AND RESTORE THE ENTIRE M ATTER BACK TO HIM FOR A FRESH DECISION BECAUSE ALL THE TECHNICAL ASPECTS AR E TO BE DECIDED FIRST AND THEN THE MATTER ON MERIT SHOULD BE DECIDED. LEARNED CIT (A) IS DIRECTED TO FIRST DECIDE ALL TECHNICAL ASPECTS FIRST INCLUDING THIS ASPECT RAISED BY THE ASSESSEE BEFORE HIM BY WAY OF GROUND NO. 2 BY WAY O F A SPEAKING AND REASONED ORDER AFTER PROVIDING ADEQUATE OPPORTUNITI ES OF BEING HEARD TO BOTH SIDES AND IF IT IS FOUND THAT THE REASSESSMENT ORDE R IS NOT VALID THEN NO ITA NO.1538/B/2014 & C. O. NO. 214(B)2015 3 ORDER IS REQUIRED TO BE PASSED ON MERIT BUT IF IT I S FOUND THAT THE REASSESSMENT ORDER IS VALID THEN THE ISSUE ON MERIT SHOULD BE DECIDED AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITIES OF BE ING HEARD TO BOTH SIDES. IN VIEW OF THIS DECISION, AT THE PRESENT STAGE, NO ADJUDICATION IS CALLED FOR ON ANY OTHER ISSUE RAISED BY THE ASSESSEE IN THE C. O. OR BY THE REVENUE IN THE APPEAL. 4 IN THE RESULT, THE C.O. OF ASSESSEE AND THE APPEA L OF THE REVENUE ARE 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 ACCOUNTANT MEMBER PLACE: BANGALORE D A T E D : 08.09.2017. *MS COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.