Shri S R Vishwanatha , Bangalore V. Income Tax Officer ward-6(4), Bangalore

ITA 1770/BANG/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7686 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 24-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S VENKATESH
• Assessee Lawyers: V CHANDRASHEKAR
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-A BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 1 769 / BANG/201 8 ASSESSMENT YEAR : 20 07 - 08 SMT. VANISHREE VISHWANATH, NO. 14, SINGANAYAKANAHALLI, BENGALURU NORTH TALUK, BANGALORE 560 064. PAN: ADYPV0032A VS. THE INCOME TAX OFFICER, WARD 6 [4], BANGALORE. APPELLANT RESPONDENT ITA NO. 1770/ BANG/201 8 ASSESSMENT YEAR : 2007 - 08 SHRI S R VISHWANATH, NO. 14, SINGANAYAKANAHALLI, BENGALURU NORTH TALUK, BANGALORE 560 064. PAN: AAKPV3258K VS. THE INCOME TAX OFFICER, WARD 6 [4], BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI V. CHANDRASHEKAR, A DVOCATE RESPONDENT BY : SHRI S. VENKATESH, JCIT (DR) DATE OF HEARING : 0 4 .0 7 .2018 DATE OF PRONOUNCEMENT : 13 .0 7 .2018 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER BOTH THESE APPEALS ARE FILED BY TWO DIFFERENT BUT C ONNECTED ASSESSEES AND THESE APPEALS ARE DIRECTED AGAINST TWO SEPARATE ORD ERS OF LD. CIT(A)-6, BANGALORE FOR ASSESSMENT YEAR 2007-08 DATED 16.10.2 017 IN THE CASE OF SHRI S.R. VISHWANATH AND DATED 17.10.2017 IN THE CASE OF SMT. VANISHREE VISHWANATH. BOTH THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR HET SAKE OF CONV ENIENCE. ITA NOS. 1769 & 1770/BANG/2018 PAGE 2 OF 5 2. THE GROUNDS RAISED BY THE ASSESSEE IN ITA NO. 17 69/BANG/2018 ARE AS UNDER. 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME- TAX [APPEALS] PASSED UNDER SECTION 250 OF THE ACT DATED 17/10/201 7 IN SO FAR AS IT IS AGAINST THE APPELLANT IS OPPOSED TO LAW, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS OF AND THE CIRCUMSTANCES IN TH E APPELLANT'S CASE. 2. THE APPELLANT DENIES HERSELF LIABLE TO BE ASSESS ED ON A TOTAL INCOME OF RS. 7,59,320/- AS DETERMINED BY THE LEARNED ASSE SSING OFFICER AND CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] AS AGAINST THE INCOME REPORTED BY THE APPELLANT OF RS. 2,11,430/-, ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] IS NOT JUSTIFIED IN CONFIRMING THE ESTIMATION OF AGRICULTURAL INCOME OF THE APPELLANT, MADE BY THE LEARNED ASSESSING OFFICER AMOUNTING TO RS. 7,00,000/- AS AGAINST THE ACTUAL AGRICULTURAL INCOME DERIVED AND DECLARED BY THE APPELLANT OF RS. 12,47,890/- WHICH WAS REPORTED BY THE APPELLANT FOR RATE PURPOSES, ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE. 4. THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] IS NOT JUSTIFIED IN CONFIRMING THE ADDITIONS MADE BY THE LEARNED ASS ESSING OFFICER AMOUNTING TO A SUM OF RS. 5,47,890/- AS A NON AGRIC ULTURAL INCOME AND BROUGHT THE SAME TO TAX AS INCOME FROM OTHER SO URCES, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE. 5. THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] FAILED TO APPRECIATE THAT THE ADDITION MADE OF RS. 5,47,890/- IS ARBITRARY IN NATURE AND BASED ON SUSPICION AND SURMISES, ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. WITHOUT PREJUDICE, THOUGH NOT CONCEDING, THE EST IMATION OF AGRICULTURAL INCOME BY THE LEARNED AUTHORITIES BELO W ARE SUBSTANTIALLY LOW AND THE SAME REQUIRES TO BE ENHANCED SUBSTANTIA LLY, ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 7. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER AS PER THE PARITY OF REASONING OF THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF KARANVIR SINGH 349 ITR 692, THE APPELLANT DENIES HE RSELF LIABLE TO BE CHARGED TO INTEREST UNDER SECTION 234 A, 234 B AND 234 C OF THE INCOME TAX ACT, ON THE FACTS AND CIRCUMSTANCES OF T HE CASE. FURTHER THE LEVY OF INTEREST UNDER SECTION 234 A, 234 B ET 234 C OF THE ACT IS ALSO BAD IN LAW AS THE PERIOD, RATE, QUANTUM AND ME THOD OF CALCULATION ADOPTED ON WHICH INTEREST IS LEVIED ARE ALL NOT DISCERNIBLE AND ARE WRONG ON THE FACTS OF THE CASE. 8. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, SUBSTI TUTE AND DELETE ANY OR ALL OF THE GROUNDS OF APPEAL URGED ABOVE. 9. FOR THE ABOVE AND OTHER GROUNDS TO BE URGED DURI NG THE HEARING OF ITA NOS. 1769 & 1770/BANG/2018 PAGE 3 OF 5 THE APPEAL THE APPELLANT PRAYS THAT THE APPEAL BE A LLOWED IN FULL IN THE INTEREST OF EQUITY AND JUSTICE. 3. THE GROUNDS RAISED BY THE ASSESSEE IN ITA NO. 17 70/BANG/2018 ARE AS UNDER. 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME- TAX [APPEALS] PASSED UNDER SECTION 250 OF THE ACT DATED 16/10/201 7 IN SO FAR AS IT IS AGAINST THE APPELLANT IS OPPOSED TO LAW, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS OF AND THE CIRCUMSTANCES IN TH E APPELLANT'S CASE. 2. THE APPELLANT DENIES HIMSELF LIABLE TO BE ASSESS ED ON A TOTAL INCOME OF RS. 10,87,710/- AS DETERMINED BY THE LEARNED ASS ESSING OFFICER AND CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] AS AGAINST THE INCOME REPORTED BY THE APPELLANT OF RS. 1,99,880/-, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE. 3. THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] IS NOT JUSTIFIED IN CONFIRMING THE ESTIMATION OF AGRICULTURAL INCOME OF THE APPELLANT, MADE BY THE LEARNED ASSESSING OFFICER AMOUNTING TO RS. 20,00,000/- AS AGAINST THE ACTUAL AGRICULTURAL INCOME DERIVED BY T HE APPELLANT OF RS. 28,87,830/- WHICH WAS REPORTED BY THE APPELLANT FOR RATE PURPOSES, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE. 4. THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] IS NOT JUSTIFIED IN CONFIRMING THE ADDITIONS MADE BY THE LEARNED ASS ESSING OFFICER AMOUNTING TO A SUM OF RS. 8,87,830/- AS A NON AGRIC ULTURAL INCOME AND BROUGHT THE SAME TO TAX AS INCOME FROM OTHER SO URCES, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE. 5. THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] FAILED TO APPRECIATE THAT THE ADDITION MADE OF RS. 8,87,830/- IS ARBITRARY IN NATURE AND IS BASED ONLY ON SUSPICION AND SURMISES. 6. WITHOUT PREJUDICE, THOUGH NOT CONCEDING, THE EST IMATION OF AGRICULTURAL INCOME BY THE LEARNED AUTHORITIES BELO W IS SUBSTANTIALLY LOW AND THE SAME REQUIRES TO BE ENHANCED SUBSTANTIA LLY, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE. 7. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER AS PER THE PARITY OF REASONING OF THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF KARANVIR SINGH 349 ITR 692, THE APPELLANT DENIES HI MSELF LIABLE TO BE CHARGED TO INTEREST UNDER SECTION 234 A, 234 B AND 234 C OF THE INCOME TAX ACT, ON THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE. FURTHER THE LEVY OF INTEREST UNDER SECTION 234 A, 2 34 B ET 234 C OF THE ACT IS ALSO BAD IN LAW AS THE PERIOD, RATE, QUANTUM AND METHOD OF CALCULATION ADOPTED ON WHICH INTEREST IS LEVIED ARE ALL NOT DISCERNIBLE AND ARE WRONG ON THE FACTS OF THE CASE. 8. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, SUBSTI TUTE AND DELETE ANY OR ALL OF THE GROUNDS OF APPEAL URGED ABOVE. ITA NOS. 1769 & 1770/BANG/2018 PAGE 4 OF 5 9. FOR THE ABOVE AND OTHER GROUNDS TO BE URGED DURI NG THE HEARING OF THE APPEAL THE APPELLANT PRAYS THAT THE APPEALS BE ALLOWED IN FULL IN THE INTEREST OF EQUITY AND JUSTICE. 4. IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT IN P ARA 9 OF HIS ORDER, ON PAGE NO. 5 IN THE CASE OF SMT. VANISHREE VISHWANATH, THE CIT (A) HAS DECIDED THE ISSUE AGAINST THE ASSESSEE ON THIS BASIS THAT IT IS THE C LAIM OF THE ASSESSEE THAT THE ASSESSEES AGRICULTURE PRODUCE WERE SOLD TO TWO PAR TIES OUT OF WHICH ONE PARTY SHRI T.K. NAGAENDRA KUMAR HAD NOT APPEARED IN RESPO NSE TO THE LETTERS ISSUED AND FOR THE SECOND PARTY M/S. VIJAYADURGA FRUIT MER CHANT, THE ASSESSEE HAS NOT FURNISHED THE ADDRESS. HE SUBMITTED THAT IN THE CA SE OF THE HUSBAND OF SMT. VANISHREE VISHWANATH I.E. SHRI S.R. VISHWANATH, IT IS NOTED BY CIT(A) ON PARA 9 OF PAGES 6 AND 7 OF ITS ORDER THAT AS PER AO, THE A SSESSEE HAS CLAIMED THAT HE HAS SOLD AGRICULTURAL PRODUCE OF RS. 57,71,100/- TO SEVEN PARTIES BUT EXCEPT M/S. VIJAYADURGA FRUIT MERCHANT, THE ADDRESS OF OTH ER PARTIES WERE NOT AVAILABLE ON THE BILL AND THE AO ALSO NOTED THAT IN SPITE OF ISSUANCE OF LETTER BY THE AO TO THOSE SIX PARTIES, NONE CONFIRMED THE TRA NSACTION WITH THE ASSESSEE. HE SUBMITTED THAT IN THE INTEREST OF JUSTICE, IF TH E MATTER IS RESTORED BACK TO THE FILE OF AO, THE ASSESSEE WILL BRING ON RECORD THE C ONFIRMATION FROM ALL THE PARTIES IN BOTH CASES ALONG WITH THEIR COMPLETE PRESENT ADD RESS AND THEREAFTER, THE AO MAY DECIDE THE ISSUE AFRESH. THE LD. DR OF REVENUE SUBMITTED THAT THE ASSESSEE DOES NOT DESERVE ANY MORE OPPORTUNITY. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND I FE EL THAT IN THE FACTS OF PRESENT CASE AND IN THE INTEREST OF JUSTICE, THE MATTER SHO ULD GO BACK TO THE FILE OF AO FOR FRESH DECISION AND ACCORDINGLY, I SET ASIDE THE ORD ER OF CIT(A) IN BOTH CASES AND RESTORE THE MATTER BACK TO THE FILE OF AO FOR F RESH DECISION WITH THE DIRECTION THAT THE ASSESSEE SHOULD BE GIVEN AN OPPORTUNITY TO PROVIDE CONFIRMATION OF ALL THE BUYERS OF AGRICULTURE PRODUCE IN BOTH THE CASES ALONG WITH THEIR ADDRESS AND PAN AND THEREAFTER, THE AO MAY MAKE FURTHER ENQUIRY IN THE MATTER IF FELT NECESSARY. THEREAFTER THE AO SHOULD PASS NECESSARY ORDER AS PER LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE RESPECTIVE ASSESSEE. IN VIEW OF THIS DECISION, NO ADJUDICATION IS CALLED FO R REGARDING THE MERIT OF THE CASE AT THE PRESENT STAGE. ITA NOS. 1769 & 1770/BANG/2018 PAGE 5 OF 5 6. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DA TE MENTIONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 13 TH JULY, 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.