B.N. Ramesh HUF, Bangalore V. ITO, Bangalore

ITA 18/BANG/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9508 (ITAT-BANGALORE)
• Duration Of Justice: 6 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 14-07-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 07-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G RAMESHA
• Assessee Lawyers: S V RAVISHANKAR
• Keywords: Opportunity of being heard
• Section: 148; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRI BUNAL BANGALORE BENCH C, BANGALORE BEFORE SHRI A.K.GARODIA, AM (SMC) ITA NO.18(B)/2016 (ASSESSMENT YEAR : 2005-06) SRI B.N.RAMESH (HUF) NO.38, 1 ST CROSS, NEHRUNAGAR, BANGALORE-560 020 PAN NO.AAFHB2792C APPELLANT VS THE INCOME TAX OFFICER, WARD-1, BIDAR RESPONDENT ASSESSEE BY : SHRI S.V.RAV ISHANKAR, ADVOCATE REVENUE BY : SHRI G. RAMESHA, JCIT DATE OF HEARING : 01-08-2016 DATE OF PRONOUNCEMENT : 05-0 8-2016 O R D E R PER SHRI A.K.GARODIA, AM: THIS APPEAL IS FILED BY THE ASSESSEE WHICH IS DIRE CTED AGAINST THE ORDER OF THE LD.CIT(A)-2, BANGALORE DATED 27-10-201 5 FOR THE ASSESSMENT YEAR : 2005-06 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1.THE ORDER OF TH E A U T H O R I TIES B E L OW IN SO F A R AS IT I S A G AIN S T T H E A PP E L L A N T I S OPPO SE D TO L A W, FA C T S , E QUIT Y , W E I G HT O F E VID E NC E , P RO B A BILITI ES AND C IR C UM S TANC E S OF TH E CASE . 2. TH E L E ARN E D A UTHORITI ES B E LOW A R E NO T JU S TIFI E D IN D E T E RMIN I N G TH E I N CO M E AT RS . 5 , 2 8 , 85 6 /- AS AGAI N S T TH E RETURN E D NIL IN C OM E O N TH E FA C T S AND C IR C UM S T A NC ES O F THE C A S E . 3. TH E L E A R N E D CIT - (A) - II E RR E D IN E STIM A TIN G TH E MARK E T VALU E OF TH E PR O P E R TY AT RS. 270/- P E R S QU A R E F EE T A S A G AINST TH E F A IR M A R KE T VALUE OF RS. 380/- AS C LAIMED B Y TH E APP E LLANT . TH E L EA RN E D CIT (A) A L S O E RR E D IN NOT DI S TIN G UI S HIN G TH E VALUE OF THE PROP E RTY B E T WE EN THE LAND AND TH E BUILDING . ITA NO.18(B)/2015 2 4. TH E HON'BL E CIT (A) ERRED IN IGNORING TH E F AC T THE FAIR M A RK E T VALU E R E QUIRED PRI C E ADJU S TM E NT A ND TH E PROP E RT Y IN QU ES TI O N W A S OF DIFF E R E NT DIM E N S ION AND COMMAND E D PR E MIUM DU E TH E APPROPRI A T E N ESS OF TH E SIZE O F TH E P ROP ERTY . TH E V A LU E OF TH E PR O P E RT Y CO MP A RED BY TH E H O N'BL E CIT WA S FOR A PROP E R TY W HI C H I S ODD S IZE D PL O T H E N CE GO E S ON A DISC O UN TE D PRIC E . 5. TH E L EARNE D A SSESSI N G OF FI C ER ERR E D IN I SS U I NG NOT I C E U/S 1 4 8 IN TH E NA M E OF RAM ES H (INDI V IDU A L) A ND C ON C LUDIN G TH E ASSESS M E NT IN TH E NAM E O F T HE APP E LL A NT RAM ES H (H UF ). TH E V E R Y F O UND A TI O N T O TH E A S SES SM E NT PRO CEE DIN GS I S B A D IN L A W AND H E NC E TH E E NTIR E A S SE SSM E NT D E S E RV E D T O B E S ET A S ID E . 6. TH E L E ARNED A S S E S S IN G OFFIC E R ERR E D IN N O T CONSTRUING THAT THE NOTIC E U/S 143(2) I S MANDATORILY TO BE ISSU E D E VEN ~ ASS E SSM E NT PROC EE DINGS U/ S 147. TH E L E ARNED A SS ESSING OFFI CE R FURTH E R ERR E D IN NOT ISSUIN G TH E NOTIC E WITHIN TH E TIME LIMIT SP E CIFI E D UND E R TH E . PROVISO OF SEC 1 4 3 (2) (II) AND HENCE TH E R E- AS SE SSM E NT PR O C EE DIN G S A R E B A D IN LAW. WE WISH T O R E LY ON THE JUD G M E N T G IV E N B Y A). BANGALORE BENCH OF THE ITAT IN THE CASE OF M/S ASHED PROPERTIES AND INVESTMENTS PVT.LTD., VS ACIT, CENTRAL CIRCLE-1(1). B). SPECIAL BENCH OF DELHI TRIBUNAL IN THE CASE OF RAJ KUMAR CHAWLA & ORS VS ITO (2005) 94 ITD (DEL.)(SB) 7. WITHOUT PREJUDICE, THE LD AO ERRED IN NOT ALLOWI NG THE EXEMPTION UNDER SECTION 54 OF THE IT ACT. THE APPELLANT HAS ACQUIRE D PROPERTY WITHIN THE TIME LIMIT PRESCRIBED IN THE ACT FOR CLAIM OF EXEMP TION U/S 54. 8. WITHOUT PREJUDICE, THE DISALLOWANCE IS HIGHLY EX CESSIVE AND DESERVES TO BE REDUCED SUBSTANTIALLY. 9. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, SUBSTITUTE, CHANGE AND DELETE ANY OF THE GROUNDS OF APPEAL. 10. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URG ED AT THE TIME OF HARING F THE APPEAL, THE APPELLANT PRAYED THAT THE APPEALS MAY BE ALLOWED AND JUSTICE RENDERED. 3. IT WAS SUBMITTED BY THE LD. AR OF THE ASSESSEE T HAT VARIOUS LEGAL ISSUES REGARDING VALIDITY OF THE NOTICE U/S 148 AS WELL AS VALIDITY OF THE ASSESSMENT ORDER WITHOUT ISSUING THE NOTICE U/S 143 (2) ETC. WERE RAISED BEFORE THE LD. CIT(A) BUT HE HAS NOT DECIDED THE LE GAL OBJECTIONS AS PER PARA-3.3 OF HIS ORDER BY SAYING THAT SINCE NO SUCH ISSUE HAS BEEN RAISED BEFORE THE AO AND NOTHING HAS BEEN BROUGHT ON RECOR D TO SUGGEST THAT THE ITA NO.18(B)/2015 3 ASSESSEE HAS QUESTIONED THE RE-OPENING OF THE CASE OR JURISDICTION OF THE AO IN ASSUMPTION OF JURISDICTION U/S 143(3)R.W.S.14 7 OF THE IT ACT, 1961, THESE GROUNDS ARE NOT RELEVANT IN VIEW OF THE JUDGM ENT OF THE HONBLE APEX COURT IN THE CASE OF G.K.N. DRIVE SHAFT LTD VS CIT AS REPORTED IN 259 ITR 19. HE SUBMITTED THAT THE LD. CIT(A) WAS N OT PROPER IN SAYING SO BECAUSE THIS IS A LEGAL ISSUE AND IT MAY BE RAISED AT ANY STAGE AND THEREFORE, THIS ISSUE SHOULD HAVE BEEN DECIDED BY H IM. 4. THE LD. DR OF THE REVENUE SUPPORTED THE ORDERS O F THE AUTHORITIES BELOW. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND THAT AS PER THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE BEFORE TH E LD. CIT(A) COPY AVAILABLE ON PAGE NO.27-31 OF THE PAPER BOOK, THIS SPECIFIC OBJECTION WAS RAISED BY THE ASSESSEE BEFORE THE LD. CIT(A) THAT T HE ASSESSMENT IS NOT VALID BECAUSE NOTICE U/S 143(2) IS NOT ISSUED IN TH E NAME OF THE ASSESSEE. I ALSO FIND THAT AS PER THE IMPUGNED ORDER OF THE L D. CIT(A), EVEN THIS ASPECT WAS NOT DECIDED BY THE HIM APART FROM NOT DE CIDING THE ISSUE IN RESPECT OF VALIDITY OF NOTICE ISSUED BY THE AO U/S 148 OF THE IT ACT, 1961. IN MY CONSIDERED OPINION, THESE ARE LEGAL OBJECTION S WHICH MAY BE RAISED AT ANY STAGE AND THEREFORE, EVEN IF SUCH OBJECTION IS NOT RAISED BEFORE THE AO AND RAISED BEFORE THE LD. CIT(A) FOR THE FIRST T IME, HE SHOULD HAVE DECIDED THESE ISSUES AND SINCE HE HAS NOT DONE SO, I FEEL IT PROPER THAT THE ENTIRE MATTER SHOULD GO BACK TO THE FILE OF THE LD. CIT(A) FOR FRESH DECISION. ACCORDINGLY, I SET ASIDE THE ORDER OF THE LD. CIT(A ) AND RESTORE THE ENTIRE MATTER BACK TO HIS FILE WITH A DIRECTION THAT HE SH OULD DECIDE THE LEGAL ITA NO.18(B)/2015 4 ISSUES WHICH ARE RAISED BEFORE HIM AND IF THE ASSES SEE SUCCEEDS IN ANY ONE OF THE LEGAL ISSUES, THEN NO FURTHER DECISION O N MERIT OF THE ADDITION IS CALLED FOR BECAUSE IN THAT SITUATION, THE ASSESSMEN T ITSELF WILL NOT SURVIVE BUT IF THE ASSESSEE FAILS IN RESPECT OF LEGAL OBJEC TIONS THEN, THE LD. CIT(A) SHOULD RE-DECIDE THE ISSUE ON MERIT AFRESH. NEEDLE SS TO SAY, THE LD. CT(A) SHOULD PROVIDE ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES AND HE SHOULD PASS A REASONED AND SPEAKING ORDER. IN VIE W OF MY ABOVE DECISION, NO ADJUDICATION IS CALLED FOR REGARDING M ERIT OF THE ADDITION AT THIS STAGE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MEN TIONED ON CAPTION PAGE. (A.K.GARODIA) ACCOUNTANT MEMBER D A T E D : 05-08-2016 PLACE: BANGALORE AM COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER AR, ITAT, BANGALORE ITA NO.18(B)/2015 5 1. DATE OF DICTATION 01 - 08 - 2016 .. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P. S. .. 4 DATE ON WHICH THE ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT .. 5. DATE ON WHICH THE ORDER COMES BACK TO THE SR. P.S. .. 6. DATE OF UPLOADING THE ORDER ON WEBSITE .. 7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO . 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. DATE ON WHICH ORDER DOES FOR XEROX & ENDORSEMENT . 10. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 11 THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER. 12 THE DATE ON WHICH THE FILE GOES TO THE DISPATCH SEC TION FOR DISPATCH OF THE TRIBUNAL ORDER 13 DATE OF DISPATCH OF ORDER