Sri. Shivakumar Siddalingappa, Bengaluru V. Income Tax Officer, Circle- 1(2)(3), Bengaluru

ITA 1838/BANG/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3873 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 23-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GANESH R GHALE DEPT
• Assessee Lawyers: V K SUDHAKAR SHETTY
• Keywords: Unexplained cash credit; Charitable institution; Opportunity of being heard; Set aside
• Section: 143(3); 250; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER I T A NO. 1838 /BANG/201 9 ASSESSMENT YEAR : 20 09 - 10 SHRI SHIVAKUMAR SIDDALINGAPPA, 93/4, SONDEKOPPA CIRCLE, NH 4, NELAMANGALA, BANGALORE 562 123. PAN: AKUPS8124Q VS. THE INCOME TAX OFFICER, CIRCLE 1 (2) (3), BANGALORE. APPELLANT RESPONDENT ASSESSEE BY : SHRI V.K. SUDHAKAR SHETTY, CA REVENUE BY : SHRI GANESH R GHALE, STANDING COUNSEL FOR DEPT. DATE OF HEARING : 11 . 1 1 .2019 DATE OF PRONOUNCEMENT : 22 . 1 1 .2019 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE AND THE SAME IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-1, BANGALORE DATED 26.03.2019 FOR ASSESSMENT YEAR 2009-10. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE ACTION OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 1, BANGALORE BY SUMMARILY DISMISSING THE APPEAL FILED BY THE APPELLANT WITHOUT PROVIDING APPROPRIATE OPPORTUNITY OF BEING HEARD AND PASSING THE ORDER UNDER SECTION 250 OF THE INCOME TAX ACT, 1961, AGAINST THE ASSESSEE IS UNJUST, ARBITRARY AND DESERVES TO BE QUASHED. 2. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER BY ADDING AMOUNT OF RS. 9,65,560/- AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT, WHILE PASSING THE ORDER UNDER SECTION 143(3) R.W.S. 148 OF THE ACT, WITHOUT CONSIDERING THE FACT THAT THE AMOUNT DEPOSITED TO BANK OUT OF THE AMOUNT WITHDRAWN FROM A PARTNERSHIP FIRM M/S HARSHA HOSPITAL, IN WHICH HE IS ONE OF THE PARTNERS. 3. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING ITA NO. 1838/BANG/2019 PAGE 2 OF 3 THE ACTION OF THE ASSESSING OFFICER, WITHOUT VERIFYING THE FACT THAT, T:LE LEARNED ASSESSING OFFICER FAILED DISTINGUISH THE STATUS OF THE ENTITY M/S HARSHA HOSPITAL, A PARTNERSHIP FIRM, FROM WHICH HE HAD WITHDRAWN THE CASH IN HIS INDIVIDUAL CAPACITY AS A PARTNER. 4. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN ACCEPTING THE REASON GIVEN BY THE ASSESSING OFFICER THAT, THE APPELLANT IS TRUSTEE AND MANAGING DIRECTOR OF M/S HARSHA HOSPITAL AND THERE IS NO NECESSITY THAT THE FUNDS OF THE INSTITUTIONS DEPOSITED IN THE TRUSTEE'S / MANAGING DIRECTOR'S ACCOUNTS, BY MISUNDERSTANDING THE STATUS OF THE PARTNERSHIP FIRM AS CHARITABLE TRUST. 5. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED APPRECIATE THE FACT THAT THE APPELLANT IS ONE OF THE PARTNERS IN THE PARTNERSHIP FIRM M/S. HARSHA HOSPITAL AND NEITHER A TRUSTEE NOR A MANAGING DIRECTOR OF THE TRUST, AS MENTIONED IN THE ASSESSING ORDER, AS THE REASON GIVEN BY THE ASSESSING OFFICER TREATING THE AMOUNT AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT, WITHOUT ACCEPTING THE EXPLANATION GIVEN BY THE APPELLANT. 6. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DISMISSING THE APPEALS, WITHOUT GIVING FURTHER OPPORTUNITY FOR SUBMISSION OF ADDITIONAL DOCUMENTS CALLED FOR TO SUBSTANTIATE THE CLAIM, AS DELAY IN FILING OF RELEVANT DOCUMENTS AND WRITTEN SUBMISSION WAS NEITHER INTENTIONAL NOR NEGLECT ACT OF THE APPELLANT. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT IT IS NOTED BY LD. CIT(A) IN PARA 2 OF HIS ORDER THAT CASE WAS FIRST POSTED FOR HEARING ON 20.02.2019 AND ON THIS DATE, NONE APPEARED AND THE CASE WAS POSTED FOR THE SECOND TIME ON 15.03.2019 AND ON THIS DATE, SHRI SUDHAKAR SHETTY, CA APPEARED AND THE CASE WAS DISCUSSED PARTLY AND THE AR WAS REQUESTED TO FILE THE COMPLETE SUBMISSIONS MADE BEFORE THE ASSESSING OFFICER REGARDING BANK ACCOUNTS INTRODUCED BY THE ASSESSEE AND ALSO TO EXPLAIN THE SOURCES FOR THE SAID AMOUNT AND THE TRANSACTION CONSIDERED ADVERSELY BY THE AO AND THE MATTER WAS ADJOURNED TO 21.03.2019. ON THIS THIRD DATE I.E. 21.03.2019, THE AR NEITHER APPEARED NOR SUBMITTED THE REQUIRED DETAILS AND THEREAFTER, LD. CIT(A) HAS PASSED THE IMPUGNED ORDER ON 26.03.2019 WITHOUT PROVIDING ANY FURTHER OPPORTUNITY TO ASSESSEE. HE SUBMITTED THAT UNDER THESE FACTS, IT SHOULD BE ACCEPTED THAT ADEQUATE OPPORTUNITY WAS NOT PROVIDED BY LD. CIT(A) AND THEREFORE, THE MATTER SHOULD BE RESTORED BACK TO THE FILE, OF LD. CIT(A) FOR FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO ASSESSEE. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF LD. CIT(A). HE SUBMITTED THAT ON ITA NO. 1838/BANG/2019 PAGE 3 OF 3 21.03.2019, NEITHER THE AR APPEARED NOR THERE WAS ANY REQUEST FOR ADJOURNMENT AND HENCE, THE ORDER OF LD. CIT(A) SHOULD BE CONFIRMED. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND IN VIEW OF THE FACTS DISCUSSED ABOVE, I AM SATISFIED THAT ADEQUATE OPPORTUNITY WAS NOT PROVIDED BY LD. CIT(A) AND HENCE, I SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. IN VIEW OF THIS DECISION, NO ADJUDICATION ON MERIT IS CALLED FOR AT THE PRESENT STAGE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 22 ND NOVEMBER, 2019. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.