Sri. Purushotham V.K., V. ITO,

ITA 1590/BANG/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0345 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 15-03-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 21-11-2013
• Court: TRIBUNAL
• Department Lawyers: S SUNDAR RAJAN JT
• Assessee Lawyers: V SRINIVASAN
• Keywords: Unexplained investment; Opportunity of being heard; Source of fund

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER ITA NO.1590/BANG/2013 ASSESSMENT YEAR : 2005-06 SHRI PURUSHOTHAM V.K., NO.58, WEST ANJANEYA TEMPLE STREET, BASAVANGUDI, BANGALORE 560 004. PAN: AHPPP 3277J VS. THE INCOME TAX OFFICER, WARD 18(1), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI V. SRINIVASAN, ADVOCATE RESPONDENT BY : SHRI S. SUNDAR RAJAN, JT. CIT(DR) DATE OF HEARING : 08.06.2016 DATE OF PRONOUNCEMENT : 10.06.2016 O R D E R PER SUNIL KUMAR YADAV, JUDICIAL MEMBER THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 31.10.2013 OF THE CIT(APPEALS)-II, BANGALORE INTER ALIA ON THE FOLLOWING GROUNDS:- ITA NO.1590/B/2013 PAGE 2 OF 4 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] OUGHT TO HAVE APPRECIATED TH AT THE IMPUGNED ORDER PASSED BY THE LEARNED ITO, WARD-18(1 ), BANGALORE IS ONE WITHOUT JURISDICTION IN AS MUCH AS THE APPELLANT IS REGULARLY BORNE ON THE RECORDS OF THE LEARNED IT O, WARD 1(4), BANGALORE AND HAD FILED HIS RETURN OF INCOME FOR TH E YEAR UNDER APPEAL BEFORE THE ISSUE OF NOTICE U/S. 142[1] OF TH E ACT BY THE LEARNED ITO, WARD-18(1) AND CONSEQUENTLY, THE IMPUG NED ORDER OF ASSESSMENT PASSED OUGHT TO HAVE BEEN CANCELLED. 3. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT [A] IS NOT JUSTIFIED IN SUSTAINING THE ADDITION TO THE EXTENT OF RS.40,00,000/- FROM OUT OF THE ORIGINAL ADDITION RS.70,00,000/- MA DE AS UNEXPLAINED INVESTMENT IN PROPERTY UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 4. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER W ITH THE HON'BLE CCIT/DG, THE APPELLANT DENIES HIMSELF LIABL E TO BE CHARGED TO INTEREST U/S.234-A, 234-B AND 234-C OF T HE ACT, WHICH UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APP ELLANT'S CASE AND THE LEVY DESERVES TO BE CANCELLED. 5. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URG ED AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBL Y 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 C OSTS. 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL FO R THE ASSESSEE HAS SUBMITTED THAT THE ASSESSING OFFICER HAS PASSED EX PARTE ORDER WITHOUT SERVING THE NOTICE UPON THE ASSESSEE AND MADE THE A DDITION OF THE ENTIRE INVESTMENT IN THE HANDS OF THE ASSESSEE OF RS.77 LA KHS. BEFORE THE CIT(APPEALS), THOUGH THE ASSESSEE HAS CONTENDED THA T PROPERTY WAS JOINTLY ITA NO.1590/B/2013 PAGE 3 OF 4 PURCHASED BY THE ASSESSEE, BUT THIS ASPECT WAS NOT PROPERLY EXAMINED BY THE CIT(APPEALS). BEFORE THE CIT(A), EVIDENCE WA S PLACED ON RECORD WITH REGARD TO SOURCES OF INVESTMENT ALSO. IN SUPPORT O F HIS CONTENTIONS, HE HAS FILED A COPY OF THE STATEMENT OF AFFAIRS ALONG WITH RETURN OF INCOME, IN WHICH THE INVESTMENT AND SOURCES WERE ALSO DECLARED BY TH E ASSESSEE. THE WRITTEN SUBMISSIONS FILED BEFORE THE CIT(A) WERE FI LED BEFORE US IN SUPPORT OF HIS CONTENTIONS. THE LD. COUNSEL FOR THE ASSESS EE FURTHER CONTENDED THAT SINCE THE ASSESSEE HAS FILED EVIDENCE IN SUPPORT OF SOURCE OF FUNDS, NO ADDITION WAS CALLED FOR IN THE HANDS OF THE ASSESSE E. 3. THE LD. DR RELIED UPON THE ORDER OF THE CIT(APPE ALS). 4. WE HAVE CAREFULLY EXAMINED THE MATERIAL ON RECOR D IN LIGHT OF THE RIVAL SUBMISSIONS. WE FIND THAT THE AO HAS NOT EXA MINED THE ISSUE AS HE HAS PASSED EX PARTE ORDER AGAINST THE ASSESSEE, WHEREAS THE CIT(APPEALS) HAS GONE WITH THE REMAND REPORT WITHOU T LOOKING INTO THE EXPLANATION FURNISHED BY THE ASSESSEE. IN LIGHT OF THESE FACTS, WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES FRESH ADJUDICATION BY THE CIT(APPEALS). WE ACCORDINGLY SET ASIDE THE ORDER OF THE CIT(APPEALS) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO READJUDICATE THE IS SUE AFRESH, AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO.1590/B/2013 PAGE 4 OF 4 5. IN THE RESULT, THE APPEAL THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 10 TH DAY OF JUNE, 2016. SD/- SD/- ( ABRAHAM P. GEORGE ) (SUNIL KUMAR YAD AV ) ACCOUNTANT MEMBER JUDIC IAL MEMBER BANGALORE, DATED, THE 10 TH JUNE, 2016. /D S/ COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.