Appeal details
Counselvise Citation
[2021] 108 COUNSELVISE.COM (IT) 0018 (ITAT-BANGALORE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 11 month(s) 6 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
22-07-2021
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
A
Assessment Year
2012-2013
Appeal Filed On
16-08-2019
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI , JUDICIAL MEMBER IT A NO . 1809 & 1810/BANG/2019 ASSESSMENT YEAR S : 2012 - 13 & 201 4 - 15 SMT. SULOCHANA RAMESH, # 68/A, FLAT NO.401, BLISS BLOSSOM APARTMENT, JOGUPALYA MAIN ROAD, BENGALURU 560 094. PAN: AAXPR 8496E VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 2(2), BENGALURU. APPELLANT RESPONDENT APPELLANT BY : S HRI V SRINIVASAN, ADVOCATE RESPONDENT BY : MS. NEERA MALHOTRA, C IT(DR)(ITAT ), BENGALURU. DATE OF HEARING : 22.07 .2021 DATE OF PRONOUNCEMENT : 22,07. 202 1 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THESE APPEALS BY THE ASSESSEE ARE AGAINST THE C OMMON ORDER OF THE CIT(APPEALS) DATED 07.06.2019 OF THE CIT(APPEAL S)-11, BENGALURU FOR THE ASSESSMENT YEARS 2012-13 & 2014-15. 2. THE ASSESSEE HAS RAISED COMMON GROUNDS OF APPEAL IN THESE APPEALS WITH ONLY CHANGE IN FIGURES AND THE GROUNDS FOR THE AY 2012-13 ARE AS FOLLOWS:- 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR A S THEY ARE AGAINST THE APPELLANT, ARE OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO.1809 & 1810/BANG/2019 PAGE 2 OF 4 2. THE ORDER OF THE LEARNED CIT[A] IS VOID-AB-INITI O AND BAD IN LAW AS THE SAME IS PASSED ON ERRONEOUS APPRECIAT ION OF FACTS AND LAW AND FURTHER, IN VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE WARRANTING IT TO BE CANCELLED AS VOID-AB-IN ITIO. 3. THE LEARNED CIT[A] IS NOT JUSTIFIED IN DISMISSIN G THE APPEAL IN-LIMINE ON THE GROUND THAT THE TAX ON THE INCOME RETURNED IN THE RETURN FILED IN RESPONSE TO NOTICE U/S.153C OF THE ACT, WAS NOT PAID AND THEREFORE, THE APPEAL IS NOT MAINTAINABLE U/S.249[4] OF THE ACT, UNDER THE FACTS AND IN THE C IRCUMSTANCES OF THE APPELLANT'S CASE OVERLOOKING THE FACT THE RETUR N SO FILED IS TREATED AS NON-EST AND THERE IS NO OBLIGATION TO PA Y ANY TAX ULS.140A OF THE ACT, ATTRACTING THE DISQUALIFICATIO N U/S.249[4] OF THE ACT. 3.1 THE LEARNED CIT[A] FAILED TO APPRECIATE THAT TH E RETURN FILED BY THE APPELLANT IN RESPONSE TO NOTICE U/S.15 3C OF THE ACT, ITSELF WAS BAD IN LAW AS THERE WAS NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH WARRANTING ISSUANCE OF NOTICE ULS.153C OF THE ACT, BY THE LEARNED A.O. UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 3.2 THE LEARNED CIT[A] FAILED TO APPRECIATE THAT TH E LEARNED A.O. HIMSELF TREATED THE RETURN FILED BY THE APPELL ANT IN RESPONSE TO NOTICE U/S.153C OF THE ACT, AS NON-EST IN LAW AN D CONSEQUENTLY, NO TAX IS PAYABLE U/S.140A OF THE ACT TO WARRANT AT TRACTION OF SECTION 249[4] OF THE ACT, THE LEARNED CIT[A] IS NO T JUSTIFIED IN DISMISSING THE APPEAL IN-LIMINE FOR NON-PAYMENT OF TAX ON THE RETURNED INCOME IN TERMS OF SECTION 249[4] OF THE A CT, UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S C ASE. 4. WITHOUT PREJUDICE TO THE ABOVE, THE INVOCATION O F JURISDICTION U/S.153C OF THE ACT, IS BAD IN LAW ALT HOUGH THE DOCUMENTS DISCOVERED DURING THE COURSE OF SEARCH AN D SEIZED PERTAIN TO THE APPELLANT FOR COMPUTATION OF TOTAL I NCOME, THE APPELLANT HAD DISCLOSED THE INCOME AND THERE WAS NO T ANY INCRIMINATING MATERIALS POINTING OUT ANY UNDISCLOSE D INCOME AND CONSEQUENTLY, THE ASSUMPTION OF JURISDICTION U/S.15 3C OF THE ACT, IS BAD IN LAW FOR THE ASSESSMENT YEAR UNDER APPEAL HAVING REGARD TO THE RATIO OF THE DECISION OF THE HON'BLE JURISDI CTIONAL HIGH COURT IN THE CASE OF IBC KNOWLEDGE PARK P. LTD., REPORTED IN 385 ITR 346 [KAR]. ITA NO.1809 & 1810/BANG/2019 PAGE 3 OF 4 5. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT[ A] IS NOT JUSTIFIED IN UPHOLDING THE COMPLETION OF THE ASSESS MENT U/S.144 OF THE ACT UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE, IN AS MUCH AS, THE APPELLANT'S HUSBAND WAS AP PEARING BEFORE THE LEARNED A.O. ONLY TO SUBMIT AND EMPHASIS AGAIN AND AGAIN THAT THE A.O. DID NOT HAVE JURISDICTION TO MAKE ANY ASSESSMENT AND CONSISTENT WITH SUCH PLEADING PERHAPS HE DID NO T GIVE THE REQUIRED DETAILS TO THE LEARNED A.O. LEST SHOULD NO T SAY THAT THE PARTICIPATION CURED THE FATAL DEFECT. 6. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT[ A] IS NOT JUSTIFIED IN NOT DISPOSING OF THE FOLLOWING ADDITIO NS UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S C ASE : [1] CAPITAL GAINS ON SALE OF FLATS RS. 20,00,000 /- [2] SHORT TERM CAPITAL GAINS ON SALE OF FLATS RS. 82,61,925/- [3] LONG TERM CAPITAL GAINS ON SALE OF FLATS RS. 18,61,075/- [4] UNEXPLAINED DEPOSIT IN BANK ACCOUNTS RS. 1,27,0 1,041/- [5] UNCONFIRMED CREDIT IN THE BANK ACCOUNTS RS. 2,2 5,92,940/- [6] UNEXPLAINED CASH DEPOSITS RS. 4,49,500/- 7. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WI TH THE HON'BLE CCIT/DG, THE APPELLANT DENIES HERSELF LIABL E TO BE CHARGED TO INTEREST U/S. 234A, 234B AND 234C OF THE ACT, WHICH UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE DESERVES TO BE CANCELLED. 8. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGE D AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT H UMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTING THE A PPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITUTION FEES A S PART OF THE COSTS. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. AT THE TIME OF HEARING, IT WAS BROUGHT TO OUR NOTICE THAT THE CIT(A) HAS PASSED EX PARTE ORDER IN THESE ASSESSMENT YEARS WITHOUT GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. FURTHE R IT IS SUBMITTED THAT AS ITA NO.1809 & 1810/BANG/2019 PAGE 4 OF 4 PER THE RETURN OF INCOME, THE ASSESSEE HAS DULY PAI D THE ADMITTED TAX SHOWN IN THE RETURN FILED BY THE ASSESSEE ALSO FORM 26AS OF THE RESPECTIVE ASSESSMENT YEARS. ACCORDING TO THE LD. AR, THERE I S NO NON-PAYMENT OF ADMITTED TAX AND HE SOUGHT AN OPPORTUNITY TO PRESEN T THE CASE BEFORE THE CIT(APPEALS). WE ACCEDE TO THE REQUEST OF THE LD. AR. ADMITTEDLY, IN THIS CASE, ORDER WAS PASSED BY THE CIT(APPEALS) EX PARTE WITHOUT GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. FURTHER, T HE CIT(A) HAS NOT GONE THROUGH THE DETAILS OF PAYMENT OF ADMITTED TAX WHIC H IS REQUIRED TO BE VERIFIED BY HIM AFTER GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE IN BOTH THE ASSESSMENT YEARS. ACCORDINGLY, THESE APPEALS A RE REMITTED BACK TO THE FILE OF THE CIT(APPEALS) FOR DE NOVO CONSIDERATION OF THE ISSUES AFTER PROVIDING OPPORTUNITY OF BEING HEARD TO THE ASSESSE E. 4. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 22 ND DAY OF JULY, 2021. SD/- SD/- ( BEENA PILLAI ) ( CHANDRA POOJARI ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 22 ND JULY, 2021. / DESAI S MURTHY / COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.
