M/s. B. Y. Ramesh & Partners, Hassan V. Income Tax Officer, Ward-1, Haasan

ITA 1936/BANG/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7718 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 04-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S VENKATESH
• Keywords: Opportunity of being heard; Principle of natural justice; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-A BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 1936 / BANG/201 8 ASSESSMENT YEAR : 20 1 4 - 1 5 M/S. B.Y. RAMESH & PARTNERS, AJANTHA WINE CENTER, SPARSHA NILAYA, HARSHA MAHAL ROAD, HASSAN. PAN: AAHFB1689F VS. THE INCOME TAX OFFICER, WARD 1, HASSAN. APPELLANT RESPONDENT APPELLANT BY : SHRI RAVI SHANKAR, ADVOCATE RESPONDENT BY : SHRI S. VENKATESH, JCIT (DR) DATE OF HEARING : 0 4 .0 7 .2018 DATE OF PRONOUNCEMENT : 13 .0 7 .2018 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE WHICH IS DIREC TED AGAINST THE ORDER OF LD. CIT (A), MYSORE DATED 28.02.2018 FOR ASSESSMENT YEAR 2014-15. 2. THE GROUNDS RAISED BY THE ASSESSEEARE AS UNDER. 1. THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS], MYSURU DATED 28/02/2018, IN SO FAR AS IT IS AGAINST THE APPELLANT, IS OPPOSED TO LAW, WEIGHT OF EVIDENCE, P ROBABILITIES, FACTS AND CIRCUMSTANCES IN THE APPELLANT'S CASE. 2. THE APPELLANT DENIES ITSELF LIABLE TO BE ASSESSE D ON A TOTAL INCOME OF RS. 45,08,270/- AS DETERMINED BY THE LEARNED ASSESS ING OFFICER AND CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] AS AGAINST THE INCOME DECLARED BY THE APPELLANT AT RS. NIL, ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE EX-PARTE ORDER PASSED BY THE LEARNED COMMISS IONER OF INCOME- TAX [APPEALS] IS BAD IN LAW AS THE APPELLANT WAS NO T AFFORDED A REASONABLE OPPORTUNITY OF HEARING, WHICH IS IN GRAV E VIOLATION OF PRINCIPLES OF NATURAL JUSTICE, ON THE FACTS AND CIR CUMSTANCES OF THECASE. ITA NO.1936/BANG/2018 PAGE 2 OF 4 4. THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] IS NOT JUSTIFIED IN NOT ADMITTING THE APPEAL PREFERRED BY THE APPELL ANT, ERRONEOUSLY HOLDING THAT THE APPELLANT HAS FILED THE APPEAL BEY OND THE DUE DATE, WITHOUT PROPERLY APPRECIATING THAT THE APPELLANT HA D ELECTRONICALLY FILED THE APPEAL AS PER THE STATUTORY REQUIREMENT O N 23/01/2017 WHICH IS WITHIN STIPULATED 30 DAYS FROM THE DATE OF SERVI CE OF THE IMPUGNED ORDER OF ASSESSMENT I.E. SERVED ON 24/12/2016 AND T HE HARD COPY OF THE APPEAL PAPERS WERE FILED BY THE APPELLANT WITH THE OFFICE OF THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] ON 27/01/2017 WHICH WAS ERRONEOUSLY CONSIDERED AS THE DATE OF FILING WITHOU T PROPERLY VERIFYING THE RECORDS AND CONSEQUENTLY ERRED IN NOT ADMITTING THE APPEAL PREFERRED BY THE APPELLANT ON THE GROUND OF LIMITAT ION, ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] OUGHT TO HAVE APPRECIATED THAT THE LEARNED ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING AN ADDITION OF RS. 45,08,270/- BEING THE EST IMATION OF PROFIT AT 15% OF. THE TOTAL PURCHASES MADE OF RS. 3,00,55,132 /-, ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] OUGHT TO HAVE APPRECIATED THAT SINCE, THE ENTIRE SALES HAVE BEEN ACCOUNTED IN THE BOOKS OF M/S. PUNYA ENTERPRISES WHEREIN THE APPELLA NT IS ALSO A PARTNER IN THE SAID FIRM I.E. M/S. PUNYA ENTERPRISE S, THE ADDITION IN THE HANDS OF THE APPELLANT ON THE VERY SAME SALES MADE BY M/S. PUNYA ENTERPRISES AMOUNTS TO DOUBLE TAXATION WHICH IS AGA INST THE PRINCIPLES OF TAXATION AND CONSEQUENTLY THE LEARNED COMMISSION ER OF INCOME-TAX [APPEALS] OUGHT TO HAVE DELETED THE ENTIRE ADDITION MADE IN THE HANDS OF THE APPELLANT, ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 7. WITHOUT PREJUDICE, THE LEARNED COMMISSIONER OF I NCOME-TAX [APPEALS] OUGHT TO HAVE APPRECIATED THAT THE ENTIRE PURCHASES AND SALES MADE ON ACCOUNT OF THE APPELLANT HAVE BEEN DU LY ACCOUNTED IN THE BOOKS OF M/S. PUNYA ENTERPRISES AND THUS, THERE IS NO LOSS OF REVENUE TO THE GOVERNMENT, SINCE THE APPLICABLE TAX ES HAVE ALL BEEN PAID BY M/S. PUNYA ENTERPRISES, ON THE FACTS AND CI RCUMSTANCES OF THE CASE. 8. WITHOUT PREJUDICE, THE LEARNED COMMISSIONER OF I NCOME-TAX [APPEALS] OUGHT TO HAVE APPRECIATED THAT THE LEARNE D ASSESSING OFFICER WAS NOT CORRECT IN DETERMINING THE PROFIT AT 15% ON THE TOTAL PURCHASES OF RS. 3,00,55,132/- MADE ON ACCOUNT OF T HE APPELLANT TO M/S. PUNYA ENTERPRISES, FOR THE REASON THAT M/S. PU NYA ENTERPRISES HAS SHOWN AND ACCOUNTED THE PURCHASES IN ITS BOOKS AT RS. 3,00,55,132/- AND CONSEQUENTLY UNDER MATCHING PRINC IPLE THE SALES IN THE BOOKS OF THE APPELLANT HAS TO BE NECESSARILY BE SHOWN AT RS. 3,00,55,132/- WHEREIN THE PROFIT WOULD BE NIL, ON T HE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO.1936/BANG/2018 PAGE 3 OF 4 9. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER AS PER THE PARITY OF REASONING OF THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF KARANVIR SINGH 349 ITR 692, THE APPELLANT DENIES IT SELF LIABLE TO BE CHARGED TO INTEREST UNDER SECTION 234 A & 234 B OF THE INCOME TAX ACT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. FURTHER THE LEVY OF INTEREST UNDER SECTION 234 A & 234 B OF THE ACT IS ALSO BAD IN LAW AS THE PERIOD, RATE, QUANTUM AND METHOD OF CALCULATION ADOPTED ON WHICH INTEREST IS LEVIED ARE ALL NOT DISCERNIBLE AND ARE WRONG ON THE FACTS OF THE CASE. 10. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, SUBST ITUTE AND DELETE ANY OR ALL OF THE GROUNDS OF APPEAL URGED ABOVE. 11. FOR THE ABOVE AND OTHER GROUNDS TO BE URGED DUR ING THE HEARING OF THE APPEAL THE APPELLANT PRAYS THAT THE APPEAL BE A LLOWED IN THE INTEREST OF EQUITY AND JUSTICE. 3. IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT AS P ER THE IMPUGNED ORDER OF CIT(A), IT WAS HELD BY CIT(A) THAT THE APPEAL WAS F ILED BY ASSESSEE BELATEDLY BECAUSE IT WAS FILED ON 27.01.2017. HE SUBMITTED T HAT AS PER PAGE 19 OF THE APPEAL MEMO, THE APPEAL WAS FILED BY THE ASSESSEE B Y WAY OF E-FILING ON 23.01.2017 AND AS PER PAGE 18 OF PAPER BOOK, THE FI LING OF APPEAL WAS ON 23.01.2017 BY FILING OF HARD COPY OF THE SAID APPEA L. HE SUBMITTED THAT CIT(A) HAS NOT CONSIDERED THE E-FILED APPEAL AND THEREFORE , THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF CIT(A) FOR FRESH DECIS ION. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A). 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND THAT AS PER PAGE 18 OF PAPER BOOK, THE APPEAL WAS FILED BY ASSESSEE ON 27.01.201 7 BUT AS PER PAGE 19 OF PAPER BOOK, IT IS SEEN THAT THE APPEAL WAS FILED BY THE ASSESSEE ON 23.01.2017 BY WAY OF E-FILING. AS PER PARA 3 OF THE ORDER OF CIT(A), THE NOTICE OF DEMAND WAS SERVED ON THE ASSESSEE ON 24.12.2016 AND THEREF ORE, IF THE APPEAL IS FILED BY WAY OF E-FILING ON 23.01.2017 THEN THERE IS NO D ELAY IN FILING OF APPEAL. BUT THIS CLAIM OF THE ASSESSEE HAS TO BE EXAMINED BY CI T(A). MOREOVER EVEN IF THERE IS SOME DELAY IN FILING OF APPEAL, THE ASSESS EE SHOULD GET AN OPPORTUNITY TO MAKE THE REQUEST FOR CONDONATION OF DELAY AND TH EREFORE, I SET ASIDE THE ORDER OF CIT (A) AND RESTORE THE MATTER BACK TO THE FILE OF CIT (A) FOR FRESH DECISION IN THE LIGHT OF ABOVE DISCUSSION AFTER PRO VIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. ITA NO.1936/BANG/2018 PAGE 4 OF 4 5. IN VIEW OF THIS DECISION, NO ADJUDICATION IS CAL LED FOR REGARDING THE MERIT OF THE CASE AT THE PRESENT STAGE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DA TE MENTIONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 13 TH JULY, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.