T.D.Ravikumar , Bangalore V. INcome Tax Officer Ward-2 , Shimoga

ITA 1864/BANG/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7121 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 15-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIKAS SURYAWANSHI
• Assessee Lawyers: RACHANA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC A BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV , JUDICIAL MEMBER ITA NO. 1864/BANG/2017 ASSESSMENT YEAR : 2008 - 09 SHRI T D RAVIKUMAR, C/O. M/S. KAMATH & KAMATH, ADVOCATES, 5 TH FLOOR, CHITRAPUR BHAVAN, 8 TH MAIN ROAD, MALLESWARAM, BANGALORE 560 055. PAN: AFHPR 8943R VS. THE INCOME TAX OFFICER, WARD 2, SHIVAMOGGA. APP ELLANT RESPONDENT APP ELLANT BY : MS. RACHANA, ADVOCATE RESPONDENT BY : SHRI VIKAS SURYAWANSHI, ADVOCATE DATE OF HEARING : 15.11.2017 DATE OF PRONOUNCEMENT : 15 .12.2017 O R D E R THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(APPEALS) INTER ALIA ON THE FOLLOWING GROUNDS: (6) THE IMPUGNED ORDER DATED 22.05.2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS), DAVANAGERE IN PROCEEDINGS NO. ITA NO. CIT (A) 375 / HBL / DVG / 2 010-11 DISMISSING THE APPEAL PETITION FILED AGAINST THE OR DER DATED 31.12.2010 PASSED BY THE INCOME TAX OFFICER, WARD-2 , SHIMOGA FOR THE YEAR 2008-09 UNDER THE PROVISIONS OF SECTIO N 143 (3) OF THE INCOME TAX ACT 1961 IS NOT ONLY ILLEGAL, IMPROP ER, UNJUST AND HIGHLY VIOLATIVE OF THE PRINCIPLES OF NATURAL JUSTI CE. (7) THE LEARNED FIRST APPELLATE AUTHORITY SERIOUSL Y ERRED IN SUMMARILY DISMISSING THE APPEAL PETITION FOR WANT O F PROSECUTION OF THE CASE AND HAS FAILED TO APPLY HIS MIND TO THE FACTS ALREADY ITA NO.1864/BANG/2017 PAGE 2 OF 4 URGED BY THE APPELLANT WHICH WAS ALREADY AVAILABLE IN THE RECORDS AND NO ADDITIONAL DOCUMENTS NEED TO HAVE BEEN PRODU CED TO SUPPORT THE GROUNDS URGED BEFORE THE FIRST APPELLAT E AUTHORITY AND AS SUCH EVEN IN THE ABSENCE OF PHYSICAL PRESENC E OF THE APPELLANT OR HIS REPRESENTATIVE, THE FIRST APPELLAT E AUTHORITY OUGHT TO HAVE DISPOSED OF THE APPEAL PETITION ON ME RITS INSTEAD OF SUMMARILY DISMISSING THE SAME FOR WANT OF PROSECUTI ON. BY DOING SO THE LEARNED FIRST APPELLATE AUTHORITY HAS SHERKE D HIS RESPONSIBILITY IN ADJUDICATING THE APPEAL PETITION JUDICIOUSLY. (8) BOTH THE LOWER AUTHORITIES HAVE SERIOUSLY ERRED IN THEIR WILD GUESS WITHOUT THEIR BEING ANY POSITIVE OR COGE NT MATERIAL TO SUSTAIN THEIR ESTIMATION AND THE IMPUGNED TIERS HAV E BEEN PASSED BY COMPLETELY OVERLOOKING THE MATERIAL FACTS PLACED BY THE APPELLANT BEFORE THE INCOME TAX OFFICER AS WELL AS BEFORE THE FIRST APPELLATE AUTHORITY WHICH WERE AVAILABLE IN T HEIR RESPECTIVE RECORDS. THEREFORE THE IMPUGNED ORDERS ARE NOT SUST AINABLE AND REQUIRE TO BE QUASHED WITH DIRECTIONS TO THE INCOME TAX OFFICER TO VERIFY THE RECORDS PROPERLY AND ADJUDICATE THE M ATTER JUDICIOUSLY. PRAYER FOR THESE AMONGST OTHER GROUNDS THAT MAY BE URGED A T THE TIME OF ARGUMENTS THE APPELLANT MOST HUMBLY PRAYS TO ALLOW THE APPEAL AND SET ASIDE THE IMPUGNED ORDERS DATED 22.05.2017 OF THE FIRST APPELLATE AUTHORITY AS WELL AS THE CONSEQUENTIAL AS SESSMENT ORDER DATED 31.12.2010 PASSED BY THE INCOME TAX OFF ICER, WARD- 2, SHIMOGA FOR THE YEAR 2008-09 UNDER THE PROVISION S OF SECTION 143 (3) OF THE INCOME TAX ACT 1961 AND DIRECT THE I NCOME TAX OFFICER, WARD-2, SHIMOGA TO REFRAME THE ASSESSMENT ORDER AFTER GIVING PROPER HEARING TO THE APPELLANT AND CONSIDER ING THE DOCUMENTARY EVIDENCES MAINTAINED IN THE USUAL COURS E OF ITS BUSINESS BY THE APPELLANT AND GRANT SUCH OTHER FURT HER RELIEF AS MAY BE PRAYED AT THE TIME OF ARGUMENTS AND ALSO IN THE ENDS OF JUSTICE. 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL F OR THE ASSESSEE HAS CONTENDED THAT THE CIT(APPEALS) HAS DISMISSED THE A PPEAL IN LIMINE WITHOUT ADJUDICATING THE ISSUES ON MERIT. THE CIT(APPEALS) HAS NOT AFFORDED PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DISM ISSED THE APPEAL ITA NO.1864/BANG/2017 PAGE 3 OF 4 SUMMARILY. THEREFORE, IN THE INTEREST OF JUSTICE, THE ORDER OF THE CIT(APPEALS) BE SET ASIDE AND MATTER BE RESTORED TO HIS FILE FOR READJUDICATION OF THE ISSUES AFRESH, AFTER AFFORDIN G OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. THE LD. DR PLACED RELIANCE UPON THE ORDER OF THE CIT(APPEALS). 4. HAVING EXAMINED THE ORDERS OF THE LOWER AUTHORIT IES IN THE LIGHT OF RIVAL SUBMISSIONS, I FIND THAT THE CIT(APPEALS) HAS DISMISSED THE ASSESSEES APPEAL SUMMARILY WITHOUT AFFORDING PROPE R OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. SINCE THE APPEAL WAS NOT DI SPOSED OF ON MERIT, I SET ASIDE THE ORDER OF THE CIT(APPEALS) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO READJUDICATE THE APPEAL AFRESH, AFTER AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 15 TH DAY OF DECEMBER, 2017. SD/- ( SUNIL KUMAR YADAV ) JUDICIAL MEMBER BANGALORE, DATED, THE 15 TH DECEMBER, 2017. / D ESAI S MURTHY / ITA NO.1864/BANG/2017 PAGE 4 OF 4 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY ITAT, BANGALORE.