Dr. B.S Ajai, Mysuru V. Assistant Commissioner Of Income Tax Circle-2(1), Mysuru

ITA 1656/BANG/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0172 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 18-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NANDINI DAS
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORESHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER AN D SHRI LALIET KUMAR, JUDICIAL MEMBER ITA NO. 1 656 /BANG/201 8 ASSESSMENT YEAR : 20 14 - 15 DR. B.S. AJAI KUMAR, NO. 12, PARK HOUSE, MIRZA ROAD, NAZARBAD, MYSURU 570 010. PAN: ACZPA6190L VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 2 (1), MYSURU. APPELLANT RESPONDENT ASSESSEE BY : SHRI RAVISHANKAR, ADVOCATE RE VENUE BY : SMT. NANDINI DAS, ADDL. CIT (DR) DATE OF HEARING : 1 2 . 0 9 .2018 DATE OF PRONOUNCEMENT : 20 . 0 9 .2018 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE AND THE SAME I S DIRECTED AGAINST THE ORDER OF LD. CIT(A), MYSORE DATED 28.02.2018 FOR ASSESSMENT YEAR 2014-15. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IN SO FAR AS IT IS AGAINST THE APPELLANT ARE OPPOSE D TO LAW, EQUITY AND WEIGHT OF EVIDENCE, NATURAL JUSTICE, FACTS AND CIRC UMSTANCES OF THE CASE. 2. THE APPELLANT DENIES ITSELF LIABLE TO BE ASSESSE D TO TOTAL INCOME OF RS. 3,27,28,860/- AS AGAINST THE RETURNED INCOME OF RS. 2,77,80,930/- ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT T O HAVE GIVEN SUFFICIENT OPPORTUNITY TO THE APPELLANT AND PASSED THE ORDER IN UNDUE HASTE THUS VIOLATING PRINCIPLES OF NATURAL JUSTICE AND CONSEQUENTLY ERRED IN LAW IN PASSING A PERVERSE ORDER ON THE FAC TS AND CIRCUMSTANCES OF THE CASE. 4. THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED I N LAW IN LAW IN NOT ADJUDICATING ON THE GROUNDS OF APPEAL TAKEN BY THE APPELLANT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED I N LAW IN CONFIRMING THE ACTION OF THE LEARNED ASSESSING OFFI CER IN MAKING THE ITA NO.1656/BANG/2018 PAGE 2 OF 3 ADDITION OF RS. 49,47,934/- BEING THE DISALLOWANCE U/S 57 OF THE ACT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. THE AUTHORITIES BELOW ERRED IN LAW IN NOT APPREC IATING THAT THE APPELLANT HAS NOT CLAIMED THE SAID AMOUNT AS DEDUCT ION U/S 57 OF THE ACT AND THEREFORE DISALLOWANCE U/S 57 OF THE ACT IS WHOLLY MISCONCEIVED ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 7. THE AUTHORITIES BELOW FAILED TO APPRECIATE THAT TO THE EXTENT OF OUTFLOWS BY WAY OF MORTGAGE INTEREST, DONATIONS, ET C., THE REAL INCOME AVAILABLE IN THE HANDS OF THE ASSESSEE STANDS REDUC ED AND ACCORDINGLY, IT IS ONLY THE REAL INCOME WHICH CAN BE BROUGHT TO TAX IN INDIA ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 8. THE AUTHORITIES BELOW ERRED IN LAW AND IN FACTS IN NOT APPRECIATING THAT THE INCOME THAT IS TAXABLE U/S 5 OF THE ACT IS ONLY THE INCOME WHICH ACCRUES OR ARISES TO A RESIDENT ASSESSEE OUTS IDE INDIA AND DOES NOT INCLUDE ANY INCOME WHICH IS DEEMED TO ACCRUE OR ARISE ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 9. THE AUTHORITIES BELOW FURTHER ERRED IN LAW AND I N FACTS IN NOT APPRECIATING THAT THE INDIA-US DOUBLE TAXATION AVOI DANCE CONVENTION CLEARLY STATES THAT IT DOES NOT RESTRICT IN ANY MANNER ANY EXCLUSION, EXEMPTION, DEDUCTION, CREDIT OR OTHER AL LOWANCE ACCORDED BY THE LAWS OF EITHER CONTRACTING STATE AND ACCORDI NGLY THE DISALLOWANCE IS NOT WARRANTED ON THE FACTS AND CIRC UMSTANCES OF THE CASE. 10. THE APPELLANT DENIES THE LIABILITY TO PAY INTER EST UNDER SECTION 234B AND 234C OF THE ACT IN VIEW OF THE FACT THAT T HERE IS NO LIABILITY TO ADDITIONAL TAX AS DETERMINED BY THE ASSESSING OF FICER. WITHOUT PREJUDICE, THE RATE, PERIOD AND ON WHAT QUANTUM THE INTEREST HAS BEEN LEVIED ARE NOT IN ACCORDANCE WITH THE LAW AND ARE N OT DISCERNABLE FROM THE ORDER AND HENCE DESERVES TO BE CANCELLED O N THE FACTS AND CIRCUMSTANCES OF THE CASE. 11. THE APPELLANT CRAVES LEAVE OF THIS HON'BLE TRIB UNAL, TO ADD, ALTER, DELETE, AMEND OR SUBSTITUTE ANY OR ALL OF THE ABOVE GROUNDS OF APPEAL AS MAY BE NECESSARY AT THE TIME OF HEARING. 12. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED A T THE TIME OF HEARING OF APPEAL, THE APPELLANT PRAYS THAT THE APP EAL MAY BE ALLOWED FOR THE ADVANCEMENT OF SUBSTANTIAL CAUSE OF JUSTICE AND EQUITY. 3. AT THE VERY OUTSET IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT THIS IMPUGNED ORDER OF CIT(A) IS EX-PARTE QUA THE ASSESSEE. HE A LSO SUBMITTED THAT ONLY ONE DATE OF HEARING WAS PROVIDED BY CIT(A) I.E. ON 20.0 2.2018. HE SUBMITTED THAT SINCE ADEQUATE OPPORTUNITY OF BEING HEARD WAS NOT P ROVIDED BY CIT(A), IN THE ITA NO.1656/BANG/2018 PAGE 3 OF 3 INTEREST OF JUSTICE, THE MATTER MAY BE RESTORED BAC K TO HIS FILE FOR FRESH DECISION. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A) . 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE AL SO FIND THAT AS PER THE ORDER OF CIT(A) ALSO, ONLY ONE DATE OF HEARING WAS FIXED BY HIM I.E. ON 20.02.2018 AND IN PARA 3 OF HIS ORDER, IT IS STATED THAT FOR T HE APPELLATE HEARING, A LETTER DATED 19.02.2018 WAS RECEIVED FROM ASSESSEE FOR SEE KING ADJOURNMENT. AS PER CIT(A), THIS APPLICATION WAS NOT SIGNED BY THE ASSESSEE HIMSELF AND HE DID NOT GRANT ADJOURNMENT AND DECIDED THE APPEAL. UNDE R THESE FACTS, WE ARE OF THE CONSIDERED OPINION THAT SINCE REASONABLE OPPORT UNITY OF HEARING WAS NOT PROVIDED TO THE ASSESSEE, WE FEEL IT PROPER TO REST ORE THE MATTER BACK TO THE FILE OF CIT(A) FOR FRESH DECISION AFTER PROVIDING REASON ABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ORDER ACCORDINGLY. 5. IN VIEW OF THIS DECISION, NO ADJUDICATION IS CAL LED FOR ON MERIT AT THE PRESENT STAGE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DA TE MENTIONED ON THE CAPTION PAGE. SD/- SD/- (LALIET KUMAR) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 20 TH SEPTEMBER, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.