T.S. Sukumar, Bangalore V. ITO, Bangalore

ITA 200/BANG/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 51314 (ITAT-BANGALORE)
• Duration Of Justice: 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 25-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KUMAR AJEET JT
• Assessee Lawyers: RAJENDRA HEGDE
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND GEORGE GEORGE K., JUDICIAL MEMBER ITA NO.200/BANG/2011 ASSESSMENT YEAR : 2007-08 SHRI T.S. SUKUMAR, NO.162, 10 TH B MAIN ROAD, 3 RD BLOCK JAYANAGAR, BANGALORE 560 011. PAN : AJPPS 2152M VS. THE INCOME TAX OFFICER, WARD 4(1), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI RAJENDRA HEGDE, C.A. RESPONDENT BY : SHRI KUMAR AJEET, JT.CIT(DR) DATE OF HEARING : 10.10.2011 DATE OF PRONOUNCEMENT : 10.10.2011 O R D E R PER N.K. SAINI, ACCOUNTANT MEMBER THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER D ATED 22.11.2010 OF THE CIT(APPEALS)-II, BANGALORE FOR THE ASSESSMEN T YEAR 2007-08. 2. GROUND NO.1 IS GENERAL IN NATURE, SO IT DOES NOT REQUIRE ADJUDICATION. THE OTHER GROUNDS WHICH HAVE BEEN RAISED IN THIS AP PEAL ARE AS UNDER: ITA NO.200/BANG/11 PAGE 2 OF 4 2. THE ORDER IS PASSED EX PARTE IN HASTE AND WITHOUT PROVIDING ANY OPPORTUNITY OF BEING HEARD. 3. THE ORDER IS PASSED MUCH AGAINST TO THE PRINCIPLE O F NATURAL JUSTICE AND THUS LIABLE TO BE QUASHED. 4. THE CIT(A) OUGHT TO HAVE HELD THAT APPELLANTS WIFE IS ALSO ASSESSED TO TAX INDEPENDENTLY BEFORE THE SAME ASSESSING OFFICER UNDER PAN AAOPC 0044N. 5. THE CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.1,60,110 WITHOUT VERIFICATION AND THUS FURTHER E RRED IN HOLDING THE SAME AS INVESTMENT FROM UNDISCLOSED SOU RCE. 6. THE CIT(A) FAILED TO APPRECIATE THAT THE APPELLANT HAS AVAILED LOAN FROM A CO-OPERATIVE BANK AND INVESTMEN T OF RS.37,000 IS OUT OF SUCH LOAN. 3. THE LD. COUNSEL FOR THE ASSESSEE AT THE FIRST IN STANCE ARGUED GROUND NO.2 VIDE WHICH THE GRIEVANCE OF THE ASSESSEE IS TH AT THE PROPER OPPORTUNITY OF BEING HEARD WAS NOT GIVEN TO THE ASS ESSEE. 4. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSE SSEE FILED RETURN OF INCOME ON 29.10.07 DECLARING AN INCOME OF RS.3,75,5 30, WHICH WAS PROCESSED U/S. 143(1) OF THE I.T. ACT, 1961 [HEREIN AFTER REFERRED TO AS THE ACT IN SHORT]. LATER ON, THE CASE WAS SELECTED FO R SCRUTINY. THE ASSESSING OFFICER MADE THE ADDITION OF RS.1,97,949. THE ASSE SSEE CHALLENGED THE ADDITIONS MADE BY THE AO BEFORE THE LD. CIT(A), WHO DECIDED THE CASE EX PARTE AND CONFIRMED THE ADDITIONS MADE BY THE AO. WHILE DECIDING THE CASE OF THE ASSESSEE EX PARTE , THE LD. CIT(A) IN PARA 2 OF THE IMPUGNED ORDER MENTIONED AS UNDER: 2. A FORMAL NOTICE OF HEARING WAS ISSUED ON 10/8/2 010 POSTING THE HEARING ON 26/8/2010. HOWEVER, THERE W AS NO COMPLIANCE. FURTHER OPPORTUNITIES WERE GIVEN ON 20 /9/2010 AND 8/11/2010 BUT THIS TIME ALSO THERE WAS NO COMPLIANC E. UNDER THE ITA NO.200/BANG/11 PAGE 3 OF 4 CIRCUMSTANCES, IT IS CONSTRUED THAT THE APPELLANT D OES NOT WANT TO PROSECUTE THE APPEAL FILED BY HIM. 5. NOW THE ASSESSEE IS IN APPEAL. WE HAVE HEARD BO TH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CAS E, FROM THE ABOVE NOTING OF THE LD. CIT(A), IT IS NOT CLEAR AS TO WHETHER TH E NOTICE OF HEARING WAS SERVED ON THE ASSESSEE, BECAUSE THE LD. CIT(A) SIMP LY STATED THAT A NOTICE OF HEARING WAS ISSUED. IT IS WELL SETTLED THAT NOB ODY SHALL BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM . IN THE PRESENT CASE, AS WE HAVE ALREADY POINTED OUT THAT IT IS NOT CLEAR AS TO WHETHER THE NOTICE OF HEARING WAS SERVED ON THE ASSESSEE. THEREFORE, WE DEEM IT APPROPRIATE TO SET ASIDE THE CASE TO THE FILE OF THE LD. CIT(A), T O BE ADJUDICATED AFRESH IN ACCORDANCE WITH THE LAW AFTER PROVIDING DUE AND REA SONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COOPERATE AND NOT TO SEEK UNJUSTIFIED AND UNWARRANTED ADJOURN MENTS. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 10 TH DAY OF OCTOBER, 2011. SD/- SD/- ( GEROGE GEORGE K. ) ( N.K. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 10 TH OCTOBER, 2011. DS/- ITA NO.200/BANG/11 PAGE 4 OF 4 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE (1+1) BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.