Sri Santhosh D Naik , Bangalore V. Assistant Commissioner of Income TAx Central Range-2(4), Bangalore

ITA 1870/BANG/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4605 (ITAT-BANGALORE)
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 18-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR ADD L
• Keywords: Search and seizure; Salary income
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, B E NGAL U R U BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI LALI E T KUMAR, JUDICIAL MEMBER ITA NO. 1870 / BANG/ 201 7 (ASSESSMENT YEAR : 201 4 - 15 ) SHRI SANTOSH D NAIK, 344/B, 6 TH WARD, GANIGARA BE EDI, DEVANAHALLI, BENGALURU - 562 110. PAN:AMNPN 9965 C VS. APPELLANT ASST. COMMISSIONER OF INCOME - TAX CENTRAL RANGE 2(4), BENGALURU. RESPONDENT APPELLANT BY : SHRI BALRAM R RAO, ADVOCATE. RESPONDENT BY : DR. P.V.PRADEEP KUMAR, ADD L.CIT(DR) DATE OF HEARING : 11/06/2018 DATE OF PRONOUNCEMENT : 15 /0 6 /2018 O R D E R PER I NTURI RAMA RAO, AM : THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 11, [CIT(A)], BENGALURU, DATED 24/07/2017 FOR THE ASSESSMENT YEAR 2014 - 15. 2. THE ASSESSEE RAISED THE FOLLOWING GROUNDS OF APPEAL: ITA NO . 1870 /BANG/201 7 PAGE 2 OF 4 3. BRIEFLY FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF SUPPLYING BUILDING MATERI ALS. NO RETURN OF INCOME WAS FILED VOLUNTARILY. CONSEQUENT TO SEARCH AND SEIZURE OPERATIONS U/S 132 OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT] IN THE CASE OF ONE K.MUNIRAJU & OTHERS, CERTAIN DOCUMENTS STATED TO BE BELONG ING TO THE APPELLANT WERE SEIZED. CONSEQUENTLY NOTICE U/S 153C DATED 06/10/2016 WAS ISSUED REQUIRING ITA NO . 1870 /BANG/201 7 PAGE 3 OF 4 THE APPELLANT TO FILE RETURN OF INCOME. THE APPELLANT NEVER RESPONDED TO THIS NOTICE. CONSEQUENTLY, THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S 1 43(3) R.W.S. 153C R.W.S 144 OF THE ACT AT TOTAL INCOME OF RS.46,81,441/ - . WHILE DOING SO, THE AO SUBSTITUTED GROSS RECEIPTS FROM BUSINESS OF SUPPLYING MATERIAL AT RS.1,36,84,323/ - AND THE PROFIT AT THE RATE OF 12% THEREOF WAS ESTIMATED AND ASSESSED TO TAX . THAT APART, SALARY INCOME OF RS.1,20,000/ - DERIVED FROM M/S.HIGH - TECH CONCRETE TECHNOLOGIES WAS ALSO ASSESSED TO TAX. 4. BEING AGGRIEVED, AN APPEAL WAS PREFERRED BEFORE THE LD.CIT(A) WHO, VIDE IMPUGNED ORDER, DISMISSED THE APPEAL IN LIMINE INVOKING THE PROVISIONS OF SUB - SECTION (4) OF SECTION 249 BY HOLDING THAT THE ASSESSEE HAD FAILED TO PAY TAX DUE ON RETURNED INCOME. 5. BEING AGGRIEVED, THE ASSESSEE IS BEFORE US IN THE PRESENT APPEAL. 6. WE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. FROM MATERIAL ON RECORD, AS BORNE OUT BY THE ASSESSMENT ORDER, THE ASSESSEE HAD NEVER FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2014 - 15. THEREFORE, QUESTION OF PAYING TAX DUE ON THE RETURNED INCOME DOES NOT ARISE. THEREFORE, LD.CIT(A) CLEARLY FELL IN ERROR IN INVOKING THE PROVISIONS OF SUB - SECTION (4) OF SECTION 249 AND DISMISSING THE APPEAL IN LIMINE . HENCE, WE REVERSE THE FINDING OF THE LD.CIT(A) ON THIS GROUND AND REMIT THE MATTER BACK TO THE FILE OF THE LD.CIT(A) FOR ADJUDICATION OF THE ISSUE IN APPEAL ON MERITS . 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH JUNE, 2018. S D/ - SD/ - ( LALI E T KUMAR ) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE : B EN GAL URU D A T E : 15 /0 6 /2018 SRINIVASULU, SPS ITA NO . 1870 /BANG/201 7 PAGE 4 OF 4 COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME - TAX APPELLATE TRIBUNAL BANGALORE