Sri.Damodar Reddy, Bangalore V. Income Tax Officer, Bangalore

ITA 167/BANG/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5445 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 09-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 23-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SWAPNA DAS
• Assessee Lawyers: V SRINIVASAN
• Keywords: Reopening of assessment; Assessment record
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH A BEFORE SHRI A RUN KUMAR GARODIA , ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO , JUDICIAL MEMBER I.T.A. NO. 167 /BANG/201 7 (ASSESSMENT YEAR : 20 08 - 09 ) SHRI DAMODAR REDDY, NO.101, YELLAPPA REDDY HOUS E, 3 RD CROSS, TMN STREET, NEW THIPPASANDRA, BANGALORE. PAN AIZPR 4884J VS. INCOME TAX OFFICER, WARD 4(2)(2), BANGALORE. APPELLANT RESPONDENT. APPELLANT BY : SHRI V. SRINIVASAN, ADVOCATE. RESPONDENT BY : SMT. SWAPNA DAS, JCIT (D.R) DATE OF H E ARING : 09.03.2017. DATE OF P RONOUNCEMENT : 05 .05. 201 7 . O R D E R PER SHRI VIJAY P AL RAO, J. M. : TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DT.19.09.2016 OF COMMISSIONER OF INCOME TAX (APPEALS) FOR THE ASSESSMENT YEAR 2008 - 09. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS : 2 ITA NO. 167 /BANG/ 201 7 3 ITA NO. 167 /BANG/ 201 7 3. THE ASSESSEE HAS RAISED THE ADDITIONAL GROUNDS WHICH READS AS UNDER : 4 ITA NO. 167 /BANG/ 201 7 4. WE FIND THAT THE ASSESSEE HAS CHALLENGED THE VALIDITY OF REASSESSMENT IN THE GROUND RAISED IN THE PRESENT APPEAL HOWEVER THE SAID ISSUE WAS NOT RAISED BY THE ASSESSEE BEFORE THE CIT (APPEALS). 5. WE HAVE HEA RD THE LEARNED AUTHORISED REPRESENTATIVE AS WELL AS LEARNED DEPARTMENTAL REPRESENTATIVE AND CONSIDERED THE RELEVANT MATERIAL ON RECORD ON THE POINT OF ADMISSION OF ADDITIONAL GROUND. THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS PURELY LEGAL IN NATURE AND GOES TO THE ROOT OF THE MATTER. THE ASSESSEE HAS CONTENDED THAT THE REASONS RECORDED FOR REOPENING OF THE ASSESSEE W ERE NOT COMMUNICATED TO THE ASSESSEE DESPITE A SPECIFIC REQUEST MADE BY THE ASSESSEE VIDE LETTER DT.22.2.2012. THUS IT IS CONTENDED TH AT THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER WITHOUT SUPPLYING THE REASONS RECORDED AND DECIDING THE OBJECTIONS AGAINST THE NOTICE ISSUED UNDER SECTION 148 SEPARATELY IS NOT SUSTAINABLE IN LAW AND LIABLE TO BE QUASHED. 6. ON THE OTHER HAND, THE LE ARNED DEPARTMENTAL REPRESENTATIVE HAS OBJECTED TO THE ADDITIONAL GROUND RAISED BY THE ASSESSEE AND SUBMITTED THAT THE ASSESSEE DID NOT RAISE THIS ISSUE BEFORE THE AUTHORITI ES BELOW THEN IT CANNOT BE ACCEP TED THAT THE ASSESSEE DEMANDED THE REASONS AND THE R EASONS WERE NOT SUPPLIED TO THE ASSESSEE. 5 ITA NO. 167 /BANG/ 201 7 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. IN SUPPORT OF HIS CONTENTION THAT THE ASSESSING OFFICER HAS NOT SUPPLIED THE REASONS RECORDED FOR REOPENING OF THE ASSESSM ENT DESPITE A SPECIFIC REQUEST MADE BY THE ASSESSEE. HE HAS ALSO FILED AN AFFIDAVIT DT.7.3.2017 WHEREIN THE ASSESSEE HAS STATED THAT HE HAD REQUESTED FOR REASONS RECORDED BY THE ASSESSING OFFICER VIDE LETTER DT.22.2.2012. WE FIND THAT THE ORDER OF THE AS SESSING OFFICER AS WELL AS THE CIT (APPEALS) ARE SILENT ON THIS ISSUE AND THEREFORE IT IS NOT POSSIBLE TO GIVE A CONCLUDING FINDING WITHOUT REFERRING TO THE ASSESSMENT RECORD ON THIS POINT. FURTHER IT IS WELL SETTLED PROPOSITION OF LAW THAT IN CASE THE AS SESSEE DEMANDS THE REASONS RECORDED FOR REOPENING OF ASSESSMENT THE ASSESSING OFFICER IS DUTY BOUND TO SUPPLY THE REASONS AND THEN DECIDE THE OBJECTIONS IF ANY FILED BY THE ASSESSEE AGAINST THE NOTICE ISSUED UNDER SECTION 148 PRIOR TO THE FRAMING OF REASSE SSMENT. THUS IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WHEN THIS ISSUE HAS NOT BEEN RAISED AND CONSIDERED BY THE AUTHORITIES BELOW, WE REMIT THIS ISSUE TO THE RECORD OF THE CIT (APPEALS) FOR ADJUDICATION AS PER LAW. SINCE THE ISSUE OF VALIDITY OF THE REOPENING HAS BEEN REMITTED TO THE RECORD OF THE CIT (APPEALS) THEREFORE THE OTHER GROUNDS RAISED ON MERIT ARE ALSO REMITTED TO THE RECORD OF THE CIT (APPEALS) FOR CONSIDERATION AND ADJUDICATION ON MERIT. 6 ITA NO. 167 /BANG/ 201 7 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 5TH MAY, 201 7 . SD/ - (A RUN KUMAR GARODIA ) ACCOUNTANT MEMBER SD/ - (VIJAY PAL RAO) JUDICIAL MEMBER BANGALORE, DT. 05 .05. 2017. *REDDY GP COPY TO : 1 . APPELLANT 2 . RESPONDENT 3 . C.I.T. 4 . CIT(A) 5 . DR, ITAT, BANGALORE. 6 . GUARD FILE. ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL BANGALORE.