Sri P Sathya Sai Baba , Tumkur V. Income TAx Officer Ward-1 , Tiptur

ITA 2041/BANG/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4604 (ITAT-BANGALORE)
• Duration Of Justice: 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 23-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R RAMESH
• Assessee Lawyers: LOKESH JAIN
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice
• Section: 43B; 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI. SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. INTURI RAMA RAO , ACCOUNTANT MEMBER ITA NO. 2041 /BANG/201 7 ASSESSMENT YEAR : 201 2 - 1 3 SHRI P. SATHYA SAI BABA, NO. 240, PITASHREE NILAYA, RAILWAY STATION ROAD, AMMASANDRA, TURUVEKERE TALUK, TUMKUR 572 211. PAN : A DGPB 2247 P VS. THE INCOME-TAX OFFICER, WARD 1, JAYADEVA COMPLEX, RAILWAY STATION ROAD, TIPTUR 572 201. APPELLANT RESPONDENT ASSESSEE BY : SHRI. LOKESH JAIN, CA REVENUE BY : SHRI. B. R. RAMESH , J CIT DATE OF HEARING : 0 5 . 0 6 .201 8 DATE OF PRONOUNCEMENT : 15 . 0 6 .201 8 O R D E R PER SUNIL KUMAR YADAV, JUDICIAL MEMBER THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A), INTER ALIA , ON FOLLOWING GROUNDS: 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS OPPOSED TO LAW, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE ORDER IS PASSED IN HASTE, WITHOUT PROVIDING SUFFICIENT AND REASONABLE OPPORTUNITY OF BEING HEARD. ITA NO. 2041/BANG/2017 PAGE 2 OF 3 3. THE ORDER IS PASSED MUCH AGAINST TO THE PRINCIPLE OF NATURAL JUSTICE AND THUS LIABLE TO BE QUASHED. 4. THE ENTIRE ORDER OF THE LD. CIT(A) IS ON THE ERRONEOUS PRESUMPTION THAT THE ASSESSMENT ORDER UNDER SECTION 143(3) OF THE ACT HAS BEEN ACCEPTED BY THE APPELLANT. THE LD. CIT(A) ERRED IN NOT CONSIDERING THE LETTER OF THE APPELLANT DATED 11-JUL-2016. 5. THE LD. AO ERRED IN TREATING THE AMOUNT OF RS. 3,50,000/- AS UNEXPLAINED CASH CREDITS BY INVOKING THE PROVISION OF SEC. 68 OF THE ACT DESPITE THE APPELLANT PROVIDING EXPLANATION ABOUT ITS NATURE AND SOURCE. THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF THE LD. AO. 6. THE LD. AO ERRED IN CONCLUDING THAT THE EXPLANATIONS PROVIDED BY THE APPELLANT WERE UNSATISFACTORY. THE LD. CIT(A) ERRED IN CONFIRMING THE ORDER OF THE LD. AO. 7. WITHOUT PREJUDICE TO ABOVE, THE LD. AO OUGHT TO HAVE RESTRICTED THE ADDITION ON ACCOUNT OF UNEXPLAINED CASH CREDITS TO THE PEAK/MAXIMUM BALANCE IN THE RESPECTIVE BANK ACCOUNT. 8. THE LD. CIT(A) AND THE LD. AO ERRED IN NOT CONSIDERING THE DECISIONS IN THE CASE OF: A. CIT-III V. MANOJLNDRAVADNCHOKSHI [2014] 50 TAXMANN.COM 419 (GUJARAT). B. GURPREET SINGH V ITO ITAT[2015] 61 TAXMANN.COM 425 (CHANDIGARH - TRIB.). ` 9. THE LD. AO ERRED IN DISALLOWING A SUM OF RS.17,910/- PAID BY THE APPELLANT TO A BROKER TOWARDS DELAYED PAYMENT BY INVOKING THE PROVISION OF SECTION 43B OF THE ACT. THE LD. CIT(A) ERRED IN CONFIRMING THE ORDER OF THE LD. AO. 2. DURING THE COURSE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT CIT(A) HAS DISPOSED OFF THE APPEAL WITHOUT AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, THEREFORE, THE ORDER OF THE CIT(A) BE SET ASIDE AND MATTER BE RESTORED TO HIS FILE. THE LEARNED DR PLACED RELIANCE UPON THE ORDER OF THE CIT(A). ITA NO. 2041/BANG/2017 PAGE 3 OF 3 3. HAVING CAREFULLY EXAMINED THE ORDER OF THE CIT(A) IN THE LIGHT OF RIVAL SUBMISSIONS, WE FIND THAT CIT(A) HAS DISMISSED THE APPEAL EX-PARTE WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. FROM THE CAREFUL PERUSAL OF THE ORDER OF THE CIT(A), WE FIND THAT IN THE ENTIRE ORDER, CIT(A) HAS NOT RECORDED ANY FINDINGS WITH REGARD TO THE SERVICE OF NOTICE OF HEARING TO THE ASSESSEE. HE HAS SIMPLY RECORDED THAT NOTICE OF HEARING WAS SENT BUT NOTHING IS AVAILABLE ON RECORD WITH REGARD TO SERVICE OF NOTICE HEARING. UNDER THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ORDER OF THE CIT(A) BE SET ASIDE AND MATTER BE RESTORED TO HIS FILE FOR READJUDICATION OF THE ISSUE AFRESH RAISED BEFORE HIM, AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY WE SET ASIDE THE ORDER OF THE CIT(A) AND MATTER IS RESTORED TO HIS FILE TO ADJUDICATE THE APPEAL TERMS INDICATED ABOVE. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 15 TH JUNE, 2018. SD/- SD/- BANGALORE. DATED: 15 TH JUNE, 2018. /NS/* COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. GUARD FILE BY ORDER SR. PRIVATE SECRETARY, ITAT, BANGALORE. (INTURI RAMA RAO) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER