Smt H M Mangala , Mandya V. The Income Tax Officer Ward-1 , Mandya

ITA 1577/BANG/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4638 (ITAT-BANGALORE)
• Duration Of Justice: 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 11-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR MANOJ KUMAR G
• Assessee Lawyers: NAREDNRA SHARMA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI. SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. INTURI RAMA RAO , ACCOUNTANT MEMBER ITA NO. 1577 /BANG/201 8 ASSESSMENT YEAR : 201 4 - 1 5 SMT. H. M. MANGALA, #12, 1 ST CROSS, LEELAVATHI LAYOUT, MADDUR, MANDYA 571 428. PAN : A MYPM 1810 G VS. THE INCOME-TAX OFFICER, WARD 1, MANDYA. APPELLANT RESPONDENT ASSESSEE BY : SHRI. NAREDNRA SHARMA, ADVOCATE REVENUE BY : DR. MANOJ KUMAR G , ADDL. CIT DATE OF HEARING : 0 4 . 0 6 .201 8 DATE OF PRONOUNCEMENT : 08 . 0 6 .201 8 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. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPELLANT, ARE OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED CIT[A] IS NOT JUSTIFIED IN OBSERVING IN THE ORDER THAT NONE APPEARED BEFORE HIM REPRESENTING THE APPELLANT WHICH IS NOT CORRECT WHEREAS SHRI SUBRAMANIAN, CHARTERED ACCOUNTANT, APPEARED BEFORE HIM DURING THE COURSE OF APPELLATE PROCEEDINGS AND IN FACT FILED THE LETTER DATED 09/12/2016 RECEIVED FROM HPCL, WHICH IS REFERRED BY THE LEARNED CIT[A] IN THE APPELLATE ORDER AND THE CIT[A] HIMSELF IN THE BODY OF THE ORDER HAS MADE REFERENCE TO ITA NO. 1577/BANG/2018 PAGE 2 OF 4 SHRI S.SUBRAMANIAN, CHARTERED ACCOUNTANT HAVING APPEARED BEFORE HIM. 3. THE LEARNED CIT[A] IS NOT JUSTIFIED IN ADMITTING AND TAKING COGNIZANCE OF THE ADDITIONAL GROUND RAISED BEFORE HIM RELATING TO THE ADDITION MADE OF RS.25,310/- RELATING TO M/S. ANAPOORNESSWARI FUEL STATION, AS THE SAID DIFFERENCE RELATE TO AN EARLIER YEAR AND NOT TO THE YEAR UNDER APPEAL AND DELETED THE SAME UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 4. THE LEARNED CIT[A] FAILED TO APPRECIATE THAT THE AMOUNT SHOWN BY THE APPELLANT TO HPCL IS LOWER THAN THE AMOUNT CLAIMED BY THEM AS DUE TO THEM FROM THE APPELLANT AT THE END OF THE YEAR AND THEREFORE, THERE IS NO SCOPE FOR MAKING THE ADDITION ON THE GROUND THAT THE CREDIT HAS NOT BEEN PROVED TO THE EXTENT IT IS SHOWN IN ITS BOOKS AND NON-RECONCILIATION OF THE DIFFERENCE IN ACCOUNTS IS NOT A RELEVANT GROUND TO MAKE THE ADDITION U/S.68 OF THE ACT. 4.1 FURTHER THE CIT[A] FAILED TO APPRECIATE THAT EVERY PURCHASE IS RECONCILED WITH THE PAYMENT AND THE A.O. COMPARED THE CREDITS AND DEBITS OF THE MONTH OF MARCH, ONLY IGNORING THE OPENING BALANCE AS WELL AS THE CLOSING BALANCE AND THE BALANCE ARRIVED FOR PURPOSES OF MAKING THE ADDITION, WHICH IS ERRONEOUS BOTH FROM ACCOUNTING POINT OF VIEW AS WELL AS THE CONSIDERATION FOR MAKING THE ADDITION OF RS.2,26,469/- U/S.68 OF THE ACT, UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 5. THE CIT[A] FAILED TO APPRECIATE THAT HPCL THE CONTRACTEE DETERMINES THE HIRE CHARGES PAYABLE AND THEN ONLY THE APPELLANT GETS THE RIGHT TO RECEIVE THE HIRE CHARGES AS A TRANSPORT CONTRACTOR AND NOT OTHERWISE AND IN FACT, THE APPELLANT IS NOT ENTITLED TO RAISE AN INVOICE AT ALL AND SINCE, NO PAYMENT WAS RECEIVED, NO INCOME BY WAY OF HIRE CHARGES ACCRUED TO THE APPELLANT AND SUCH A RECEIPT TO THE EXTENT OF RS. 1,61,476/- WAS NOT EVEN CREDITED BY A CREDIT NOTE BY HPCL AND WHEN IT WAS RECEIVED IN LATER YEAR, WHEN THE APPELLANT ACCOUNTED IT AS ITS INCOME IN ACCORDANCE WITH THE ACCOUNTING PRACTICE ADOPTED BY THE APPELLANT AND CONSEQUENTLY, NO ADDITION IS WARRANTED AND THE CIT[A] IS NOT JUSTIFIED IN SUSTAINING THE SAID ADDITION. 6. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WITH THE HON'BLE CCIT/DG, THE APPELLANT DENIES HERSELF LIABLE TO BE CHARGED TO INTEREST U/S. 234-B AND 234-C OF THE ACT, WHICH UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE AND THE LEVY DESERVES TO BE CANCELLED. ITA NO. 1577/BANG/2018 PAGE 3 OF 4 7. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTING THE APPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITUTION FEES AS PART OF THE COSTS. 2. DURING THE COURSE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION TO THE ORDER OF THE CIT(A) WITH THE SUBMISSION THAT THIS APPEAL WAS LISTED FOR HEARING ONLY ON ONE DAY I.E., 26.09.2017, THEREAFTER, THE CIT(A) HEARD THE APPEAL EX-PARTE AND DISPOSED OFF THE APPEAL ON 30.11.2017. NOTHING IS AVAILABLE IN THE ORDER WITH REGARD TO SERVICE OF NOTICE OF HEARING UPON THE ASSESSEE. THEREFORE, THE ORDER OF THE CIT(A) IS TO BE SET ASIDE AND MATTER BE RESTORED TO HIS FILE FOR READJUDICATION OF THE ISSUE AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LEARNED DR PLACED RELIANCE UPON THE ORDER OF THE CIT(A). 3. HAVING CAREFULLY EXAMINED THE ORDER OF THE CIT(A), WE FIND THAT APPEAL WAS LISTED FOR HEARING ONLY ON ONE DAY I.E., ON 26.09.2017 AND THE CIT(A) HEARD THE APPEAL EX-PARTE AND DECIDED THE ISSUE AGAINST THE ASSESSEE. SINCE IT IS NOT CLEAR FROM THE ORDER WITH REGARD TO SERVICE OF NOTICE OF HEARING UPON THE ASSESSEE, WE SET ASIDE HIS ORDER AND RESTORE THE MATTER TO HIS FILE FOR READJUDICATION OF THE APPEAL AFRESH 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 08 TH JUNE, 2018. SD/- SD/- BANGALORE. DATED: 08 TH JUNE, 2018. /NS/* ( INTURI RAMA RAO ) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER ITA NO. 1577/BANG/2018 PAGE 4 OF 4 COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. GUARD FILE BY ORDER SR. PRIVATE SECRETARY, ITAT, BANGALORE.