Sri G Srinivas Reddy , Bangalore V. The Income Tax Officer Ward-3(2)(2), Bangalore

ITA 1640/BANG/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7118 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 07-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIKAS SURYAWANSHI
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause; Reason to believe
• Section: 143(3); 234B; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC A BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER ITA NO S . 1639 TO 1643/BANG/2017 ASSESSMENT YEAR S : 2008 - 09 TO 2009 - 10 & 2011 - 12 TO 2013 - 14 SHRI G. SRINIVAS REDDY, NO.426, 1 ST FLOOR, 12 TH CROSS, G D NAIDU HALL ROAD, MAHALAXMIPURAM, BANGALORE 560 086. PAN: BDHPS 7719D VS. THE INCOME TAX OFFICER, WARD 3(2)(2), BANGALORE. APP ELLANT RESPONDENT APP ELLANT BY : SHRI RAVISHANKAR, ADVOCATE RESPONDENT BY : SHRI VIKAS S URYAWANSHI, ADDL. CIT(DR) DATE OF HEARING : 15.11.2017 DATE OF PRONOUNCEMENT : 15 .12.2017 O R D E R THESE APPEALS ARE PREFERRED BY THE ASSESSEE AGAI NST THE ORDER OF THE CIT(APPEALS) INTER ALIA ON COMMON GROUNDS. THEREFORE, THESE APPEALS WERE HEARD TOGETHER AND ARE DISPOSED OF THROUGH THI S CONSOLIDATED ORDER. FOR THE SAKE OF REFERENCE, THE GROUNDS RAISED IN IT A NO.1639/BANG/2017 ARE EXTRACTED HEREUNDER:- 1. THE ORDER OF THE CIT (A) IN SO FAR AS IT IS AGA INST THE APPELLANT IS OPPOSED TO LAW, EQUITY, WEIGHT OF EVID ENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. ITA NOS.1639 TO 1643/BANG/2017 PAGE 2 OF 5 2. THE APPELLANT DENIES HIMSELF LIABLE TO BE ASSESS ED TO A TOTAL INCOME OF RS. 23,80,140/- AS AGAINST THE TOTAL INCO ME RETURNED BY THE APPELLANT OF RS. 9,08,035/- FOR THE IMPUGNED AS SESSMENT YEAR 2008-09 ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE LEARNED CIT(A) WAS NOT JUSTIFIED IN NOT COND ONING THE DELAY OF 179 DAYS IN FILING APPEAL, WHICH WAS DUE T O REASONABLE CAUSE ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THE LEARNED CIT(A) WAS NOT JUSTIFIED IN NOT APPR ECIATING THAT THE APPELLANT WAS ILL ADVISED THAT THERE WAS N O MERIT IN APPEALING THE ORDER PASSED AND ONLY UPON RECEIVING FRESH ADVICE HAS PREFERRED TO CHALLENGE THE ADDITIONS MADE IN TH E ORDER OF ASSESSMENT, ON THE FACTS AND CIRCUMSTANCES OF THE C ASE. 5. THE LEARNED CIT(A) WAS NOT JUSTIFIED IN PASSING AN EXPARTE ORDER BY DISMISSING THE APPEAL OF THE APPELLANT, WI THOUT AFFORDING SUFFICIENT OPPORTUNITY OF BEING HEARD, WHICH IS AGA INST THE PRINCIPLES OF NATURAL JUSTICE ON THE FACTS AND CIRC UMSTANCES OF THE CASE. 6. GROUNDS ON REOPENING : A) THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT W AS BAD IN LAW ON THE FACTS AND CIRCUMSTANCES OF THE CASE. B) THE LEARNED ASSESSING OFFICER WAS NOT JUSTIFIED RE-OPENING THE ASSESSMENT SINCE THE ASSESSING OFFICER DID NOT HAVE 'REASON TO BELIEVE' THAT INCOME HAS ESCAPED ASSESSMENT FOR THE A.Y. 2008-09 ON THE FACTS AND CIRCUMSTANCES OF THE CASE. C) THE LEARNED CIT(A) WAS NOT JUSTIFIED IN NOT APPR ECIATING THAT THE LEARNED ASSESSING OFFICER HAS NOT ASSUMED PROPER JURISDICTION DUE TO THE DEFECTIVE NOTICE ON THE FAC TS AND CIRCUMSTANCES OF THE CASE. D) THE ORDER OF ASSESSMENT PASSED BY THE LEARNED A SSESSING OFFICER UNDER SECTION 143(3) R.W.S 147 OF THE ACT I S BAD IN LAW SINCE THE MANDATORY CONDITIONS AS ENVISAGED IN THE ACT TO ASSUME JURISDICTION UNDER SECTION 148 DID NOT EXIST OR HAV ING NOT BEEN COMPLIED WITH AND CONSEQUENTLY, THE REASSESSMENT RE QUIRES TO BE CANCELLED ON THE FACTS AND CIRCUMSTANCES OF THE CAS E. ITA NOS.1639 TO 1643/BANG/2017 PAGE 3 OF 5 E) THE ORDER OF REASSESSMENT IS FURTHER BAD IN LAW AND VOID AB INITIO AS THE LEARNED ASSESSING OFFICER HAD NO R EASON TO BELIEVE THAT THE INCOME OF THE APPELLANT HAS ESCAPED ASSESS MENT AND THE SAID REASONS AMOUNTED TO MERELY REASONS TO SUSPECT ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE. F) THE ORDER OF REASSESSMENT IS FURTHER BAD IN LAW AND VOID AB INITIO FOR WANT OF MANDATORY SANCTIONS OF COMPET ENT AUTHORITY AND IF OBTAINED WAS NOT IN ACCORDANCE WITH LAW ON T HE FACTS AND CIRCUMSTANCES OF THE CASE. 7. GROUNDS ON MERITS OF THE MATTER : A) THE LEARNED CIT(A) WAS NOT JUSTIFIED IN IGNORING THE FACT THAT AN G ESTIMATION OF INCOME WAS IMPROPER AND THE INCOMES RETURNED BY THE APPELLANT OUGHT TO HAVE BEEN ACCEPT ED ON THE FACTS AND CIRCUMSTANCES OF THE CASE. B) THE LEARNED CIT(A) WAS NOT JUSTIFIED IN IGNORING THE FACT THAT A SUBSTANTIAL PORTION OF THE AMOUNTS WERE PAID TO INSTITUTIONS AND A SMALL PERCENTAGE WAS RETAINED BY THE APPELLAN T ON THE FACTS AND CIRCUMSTANCES OF THE CASE. C) THE LEARNED CIT(A) WAS NOT JUSTIFIED IN IGNORING THE FACT THAT THE APPELLANT HAS INCURRED EXPENDITURE IN THE NORMAL COURSE OF EARNING COMMISSION AND THE SAME WAS TO BE ALLOWE D AS AN EXPENDITURE ON THE FACTS AND CIRCUMSTANCES OF THE C ASE. D) THE LEARNED CIT(A) WAS NOT JUSTIFIED IN IGNORING THAT THE ESTIMATE OF INCOME WAS ON THE HIGHER SIDE AND WAS T O BE SUBSTANTIALLY REDUCED ON THE FACTS AND CIRCUMSTANCE S OF THE CASE. 8. THE APPELLANT DENIES THE LIABILITY TO PAY INTERE ST UNDER SECTION 234B AND 234C OF THE ACT IN VIEW OF THE FAC T THAT THERE IS NO LIABILITY TO ADDITIONAL TAX AS DETERMINED BY THE LEARNED ASSESSING OFFICER. WITHOUT PREJUDICE THE RATE, PERI OD AND ON WHAT QUANTUM THE INTEREST HAS BEEN LEVIED ARE NOT DISCER NABLE FROM THE ORDER AND HENCE DESERVES TO BE CANCELLED ON THE FAC TS AND CIRCUMSTANCES OF THE CASE. 9. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY , DELETE OR SUBSTITUTE ANY OR ALL OF THE GROUNDS AND TO FILE A PAPER BOOK AT THE TIME OF HEARING THE APPEAL. ITA NOS.1639 TO 1643/BANG/2017 PAGE 4 OF 5 10. IN VIEW OF THE ABOVE AND OTHER GROUNDS THAT MAY BE TAKEN AT THE TIME OF THE HEARING THE APPEAL, THE APPELLAN T PRAYS THAT THE APPEAL BE ALLOWED IN THE INTEREST OF JUSTICE AND EQ UITY. 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL F OR THE ASSESSEE HAS CONTENDED THAT THE CIT(APPEALS) WITHOUT APPRECIATIN G THE ARGUMENTS OF THE ASSESSEE HAS DISMISSED THE APPEAL BEING BARRED BY L IMITATION. THE REASONS FOR CONDONING THE DELAY IN FILING OF THE AP PEAL WAS EXPLAINED BY CONTENDING THAT AFTER THE ASSESSMENT ORDER, THE ASS ESSEES FINANCIAL POSITION WAS VERY WEAK AND HE WAS ADVISED BY HIS LE GAL CONSULTANT TO WAIT FOR SOME TIME AND FILE THE APPEAL AS AND WHEN THE F INANCIAL POSITION IS STRONG. THEREFORE, THE DELAY IN FILING OF THE APPE AL WAS ON THE BASIS OF LEGAL ADVICE AND HENCE IT SHOULD BE CONDONED. THE CIT(AP PEALS) DID NOT ADJUDICATE THE GROUNDS FOR THE DELAY IN FILING OF T HE APPEAL AND DISMISSED THE APPEAL BEING BARRED BY LIMITATION. THE LD. COU NSEL FOR THE ASSESSEE HAS CONTENDED THAT SINCE THE ASSESSEE IS NOT RESPON SIBLE FOR THE DELAY IN FILING OF THE APPEAL AND HE HAS BEEN MISLED BY THE PROFESSIONALS, THEREFORE, THE DELAY SHOULD BE CONDONED AND THE APPEAL BE ADMI TTED FOR HEARING. 3. THE LD. DR PLACED RELIANCE UPON THE ORDER OF THE CIT(APPEALS). 4. HAVING CAREFULLY EXAMINED THE ORDERS OF LOWER AU THORITIES IN THE LIGHT OF RIVAL SUBMISSIONS, I FIND THAT THE ASSESSEE HAS SUFFICIENT REASONABLE CAUSE FOR THE DELAY IN FILING THE APPEAL AND THE CI T(APPEALS) OUGHT TO HAVE ACCEPTED THE EXPLANATION OF THE ASSESSEE FOR CONDON ATION OF THE DELAY, BUT HE DID NOT DO SO. I AM, HOWEVER, OF THE OPINION TH AT THERE WAS REASONABLE ITA NOS.1639 TO 1643/BANG/2017 PAGE 5 OF 5 CAUSE FOR THE DELAY IN FILING THE APPEAL. THEREFOR E, I CONDONE THE DELAY IN FILING OF THE APPEAL BEFORE THE CIT(APPEALS). ACCO RDINGLY, I SET ASIDE THE ORDER OF THE CIT(APPEALS) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO READJUDICATE THE ISSUES ON MERIT, AFTER AFFORDIN G OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 15 TH DAY OF DECEMBER, 2017. SD/- ( SUNIL KUMAR YADAV ) JUDICIAL MEMBER BANGALORE, DATED, THE 15 TH DECEMBER, 2017. / D ESAI S MURTHY / COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY ITAT, BANGALORE.