M/sHemavathi Sahakara Sakkare Kharkhane Limited , Hassan V. The Joint Commissioner of Income Tax Hassan Range, Hassan

ITA 1715/BANG/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8191 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 03-07-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 22-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR
• Assessee Lawyers: LOKESH JAIN
• Keywords: Depreciation; Principle of natural justice; Revised return
• Section: 271(1)(c); 143(3); 142(1); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES C BENCH: BANGALORE BEFORE SHRI A.K. GARODIA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA. NO. 1715 /BANG/2018 (ASSESSMENT YEAR: 201 1 - 12 ) M/S. HEMAVATHI SAHAKARA SAKKARE KHARKHANE LTD., SRINIVASAPURA, HOLENARSIPURA ROAD, CHANNARAYAPATNA TALUK, HASSAN DISTRICT. PAN AAAAH 2261H VS. JT. COMMISSIONER OF INCOME TAX , HASSAN RANGE, HASSAN. (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI LOKESH JAIN, C.A. REVENUE BY: DR. P. V. PRADEEP KUMAR, ADDL.CIT. DATE OF HEARING : 03.07.2019 DATE OF PRONOUNCEMENT : 15 .07 .2019 O R D E R PER SHRI PAVAN KUMAR GADALE, JM : THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), MYSORE PASSED U/S . 271(1)(C) AND U/S 250 OF THE INCOME TAX ACT, 1961. 2. THE ASSESSEE HAS RAISED THE GROUNDS OF APPEAL CHALLENGING NOTICE UNDER SECTION 274 OF THE ACT INVOKING PENALTY UNDER SECTION 271(1)(C) OF THE ACT AND 2 ITA NO.1715/BANG/2018 LEARNED CIT (APPEALS) HAS PASSED THE ORDER WITHOUT SUFFICIENT AND REASONABLE OPPORTUNITY. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A CO - OPERATIVE SOCIETY ENGAGED IN LEASING OF B UILDING AND PLANT AND MACHINERY OF SUGAR FACTORY AND FILED THE RETURN OF INCOME ON 27 .08.2012 WITH TOTAL INCOME NIL AND SUBSEQUENTLY FILED THE REVISED RETURN OF INCOME ON 2.9.2013 WITH INCOME OF RS.2,16,49,480 . T HE CASE WAS SELECTED FOR SCRUTINY AND A.O. ISSUED NOTICE UNDER SECTION 143(2) AND 142(1) OF THE ACT. THE LEARNED AUTHORISED REP RESENTATIVE APPEARED BEFORE THE ASSESSING OFFICER FROM TIME TO TIME AND FURNISHED DETAILS. THE ASSESSING OFFICER FOUND THAT THE ASSESSEE SOCIETY LEASED OUT MACHINERY TO SUGAR FACTORY AND THE SUBMISSIONS WERE MADE ON THESE ASPECTS AND ON CLAIM OF DEPRECIA TION . W HEREAS THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS CLAIMED SET OFF OF BROUGHT FORWARD LOSSES OF EARLIER YEARS WHICH IS NOT CLEAR HENCE MADE A DISALLOWANCE OF DEPRECIATION OF RS.15,640 AND ASSESSED THE TOTAL INCOME OF RS.2,78,44,490 AND PASS ED ORDER UNDER SECTION 143(3) OF THE ACT DT.26.3.2014. SUBSEQUENTLY, THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT AND LEVIED PENALTY BY ORDER DT.18.9.2014. AGGRIEVED BY THE PENALTY ORDER UNDER SECTION 271(1)(C) O F THE ACT, THE ASSESSEE FILED AN APPEAL WITH THE CIT (APPEALS). IN THE APPELLATE PROCEEDINGS, THE LEARNED CIT (APPEALS) HAS ISSUED NOTICE AND SINCE NONE APPEARED ON BEHALF OF THE ASSESSEE , THE ASSESSEE'S APPEAL WAS DECIDED EXPARTE 3 ITA NO.1715/BANG/2018 AND DISMISSED. AGGRIEV ED BY THE CIT (APPEALS) ORDER, THE ASSESSEE HAS FILED APPEAL WITH THE TRIBUNAL. 4. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT THE CIT (APPEALS) HAS ERRED IN DISMISSING THE ASSESSEE'S APPEAL EXPARTE AND ONLY ONE DATE OF HEARING WAS PROVIDED TO THE ASSESSEE. HENCE LEARNED AUTHORISED REPRESENTATIVE PRAYED THAT ONE MORE OPPORTUNITY BE PROVIDED BEFORE THE CIT (APPEALS) TO SUBMIT ALL THE DETAILS AND EXPLANATIONS. CONTRA, THE LEARNED DEPARTMENTAL REPRESENTATIVE OBJECTED TO THE SUBMISSIONS OF T HE LEARNED AUTHORISED REPRESENTATIVE AND SUPPORTED THE ORDER OF CIT (APPEALS). 5. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE SOLE MATRIX OF THE DISPUTED ISSUE IS IN RESPECT OF EXPARTE ORDER BY THE CIT (APPEALS) CONFIRMING TH E LEVY OF PENALTY. THE LEARNED AUTHORISED REPRESENTATIVES CONTENTION THAT THE CIT (APPEALS) HAS GRANTED ONLY ONE DATE OF HEARING AND SINCE NONE APPEARED ON THE SAID DATE , CIT (APPEALS) HAS DISMISSED THE ASSESSEE'S APPEAL. THE LEARNED AUTHORISED REPRESEN TATIVE EMPHASIZED TH A T THE ASSESSEE HAS PRIMA FACIE GOOD CASE AND PRAYED FOR ONE OPPORTUNITY BEFORE THE CIT (APPEALS). WE, CONSIDERING THE PRINCIPLES OF NATURAL JUSTICE AND THE REASONS ENVISAGED BY LEARNED AR CONSIDER IT APPROPRIATE TO PROVIDE ONE MORE OP PORTUNITY TO THE ASSESSEE AND THE REVENUE SHALL NOT BE AT A LOSS . ACCORDINGLY, WE RESTORE THE ENTIRE DISPUTED ISSUE TO 4 ITA NO.1715/BANG/2018 THE FILE OF THE CIT(A) TO ADJUDICATE AFRESH ON MERITS BY SPEAKING ORDER . IT IS NEVERTHELESS TO MENTION THAT THE CIT(A) SHOULD PROVID E ADEQUATE OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE WITH EVIDENCES AND ALSO THE ASSESSEE SHALL CO - OPERATE IN SUBMITTING THE INFORMATION EXPEDITIOUSLY FOR EARLY DISPOSAL OF THE APPEAL AND ALLOW THE GROUNDS OF APPEAL OF ASSESSEE FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 5 T H JULY, 2019. S D / - S D / - (A.K. GARODIA) (PAVAN KUMAR GADALE) ACCOUNTANT ME MBER JUDICIAL MEMBER DATED: 1 5 .07. 2019. *REDDY GP COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT (A) 4. PR. CIT 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE TRIBUNAL BANGALORE