Smt Ramlakshmi Prasad , Bangalore V. The Assistant Commissioner of Income Tax Circle-1(1), Bangalore

ITA 1736/BANG/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0176 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 23-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR NISCHAL B
• Assessee Lawyers: SOWMYA
• Keywords: Opportunity of being heard
• Section: 54; 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-A BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 1736 /BANG/201 8 ASSESSMENT YEAR : 20 08 - 09 SMT. RAMALAKSHMI PRASAD, NO. 202, RAHEJA ARBOR, ST. JOHNS ROAD, BANGALORE 560 042. PAN: ABLPP7042F VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1 (1), BANGALORE. APPELLANT RESPONDENT ASSESSEE BY : SMT. SOWMYA, ADVOCATE RE VENUE BY : DR. NISCHAL .B, ADDL. CIT(DR) DATE OF HEARING : 1 4 . 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)-2, BANGALORE DATED 14.02.2018 FOR ASSESS MENT YEAR 2008-09. 2. THERE IS A DELAY OF 18 DAYS IN FILING OF THIS AP PEAL BEFORE THE TRIBUNAL. THE ASSESSEE HAS MOVED AN APPLICATION FOR CONDONATION O F DELAY ALONG WITH AN AFFIDAVIT IN WHICH IT IS STATED THAT THE ASSESSEE I S OF 85 YEARS OF AGE AND SHE WAS IN HYDERABAD FOR TREATMENT OF KNEE JOINT AND BE CAUSE OF THIS REASON, SHE COULD NOT COME DOWN TO BANGALORE IN TIME TO FILE TH E APPEAL BEFORE THE TRIBUNAL IN TIME. CONSIDERING THESE FACTS AND IN THE INTERE ST OF JUSTICE, THE DELAY IN FILING THE APPEAL IS CONDONED AND THE APPEAL OF THE ASSESS EE IS ADMITTED. 3. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE CIT (A) ERRED IN PASSING THE ORDER IN THE MA NNER HE DID. 2. THE LEARNED CIT (A) ERRED IN PASSING THE ORDER W ITHOUT GIVING PROPER OPPORTUNITY TO THE APPELLANT. 3. THE LEARNED CIT (A) OUGHT TO HAVE GIVEN ADEQUATE OPPORTUNITY TO PRODUCE CONFIRMATION OF PAYMENT OF BROKERAGE. ITA NO.1736/BANG/2018 PAGE 2 OF 3 4. THE LEARNED CIT (A) OUGHT TO HAVE APPRECIATED TH AT THE BROKERAGE OF 2,40,000/- BEING PAID BY CHEQUE WAS SUFFICIENT P ROOF OF PAYMENT. 5. THE LEARNED CIT (A) OUGHT TO HAVE ACCEPTED THE I NCOME UNDER THE CAPITAL GAINS AS DECLARED BY THE APPELLANT. 6. THE LEARNED CIT (A) OUGHT TO HAVE APPRECIATED TH AT COST OF INVESTMENT IN THE RESIDENTIAL FLAT U/S 54 OF THE IN COME TAX ACT INCLUDES COST OF IMPROVEMENT/ ALTERATION AND THEREFORE REFRA INED FORM MAKING DISALLOWANCE OF 6,12,327/- IN THIS REGARD. 7. WITHOUT PREJUDICE, THE ADDITIONS/ DISALLOWANCES MADE ARE EXCESSIVE AND OUGHT TO BE REDUCED SUBSTANTIALLY. 8. THE LEARNED CIT (A) ERRED IN LEVYING INTEREST U/ S 234B AND 234C OF THE INCOME TAX ACT. 9. FOR THESE AND OTHER GROUNDS OF APPEAL MAY BE RAI SED AT THE TIME OF HEARING, THE APPELLANT PRAYS THAT THE APPEAL MAY BE ALLOWED. 4. AT THE OUTSET, IT WAS SUBMITTED BY LD. AR OF ASS ESSEE THAT THE IMPUGNED ORDER OF CIT(A) IS EX-PARTE QUA THE ASSESSEE. SHE ALSO P OINTED OUT THAT ONLY TWO DATES WERE FIXED BY CIT(A) FOR HEARING I.E. 28.03.2 017 AND 14.02.2018 AND ALTHOUGH THE ASSESSEE COULD NOT APPEAR BEFORE THE C IT(A) ON BOTH THESE DATES BECAUSE OF HER OLD AGE, THE OPPORTUNITY PROVIDED BY CIT(A) WAS NOT ADEQUATE AND THEREFORE, IN THE INTEREST OF JUSTICE, THE MATT ER MAY BE RESTORED BACK TO THE FILE OF CIT(A) FOR FRESH DECISION AFTER PROVIDING R EASONABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE. SHE ALSO GAVE AN UNDERTAKING TH AT IF THE MATTER IS RESTORED BACK TO THE FILE OF CIT(A) FOR FRESH DECISION, PROP ER COMPLIANCE WILL BE MADE BEFORE CIT(A) BY THE ASSESSEE. THE LD. DR OF REVEN UE SUBMITTED THAT NO FRESH OPPORTUNITY SHOULD BE PROVIDED TO THE ASSESSEE. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND IN V IEW OF THE FACTS AS DISCUSSED ABOVE, I FEEL IT PROPER TO RESTORE BACK THE MATTER TO THE FILE OF CIT(A) FOR FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE BECAUSE IN MY CONSIDERED OPINION, IN THE EARLIER RO UND, SUFFICIENT OPPORTUNITY OF BEING HEARD WAS NOT PROVIDED BY CIT(A) TO THE ASSES SEE. IN VIEW OF THIS DECISION, NO ADJUDICATION IS CALLED FOR ON MERIT AT THE PRESENT STAGE. ITA NO.1736/BANG/2018 PAGE 3 OF 3 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) 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.