B.A. Prashantha, Arasikere V. Income Tax Officer Ward - 2, Hassan

ITA 2047/BANG/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2808 (ITAT-BANGALORE)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 28-02-2019
• Assessment Year: 2005-2006
• Appeal Filed On: 18-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K R VASUDEVAN
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER A ND SHRI LALIET KUMAR, JUDICIAL MEMBER ITA NO. 2 0 4 7 / BANG/201 8 ASSESSMENT YEAR : 2 0 05 - 06 SHRI B.A. PRASHANTH, PROP. B.K. NARAYANA SETTY& SON, A.P.M.C. YARD, ARASIKERE. PAN: AHNPP9956G VS. THE INCOME TAX OFFICER, WARD 2, HASSAN. APPELLANT RESPONDENT APPELLANT BY : SHRI K.R. VASUDEVAN, ADVOCATE RESPONDENT BY : SHRI R.N. SIDDAPPAJI, ADDL. CIT (DR) DATE OF HEARING : 2 8 .0 2 .2019 DATE OF PRONOUNCEMENT : 28 .0 2 .2019 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE AND THE SAME I S DIRECTED AGAINST THE ORDER OF LD. CIT(A), MYSORE DATED 28.02.2018 FOR AS SESSMENT YEAR 2005-06. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE ORDER OF LEARNED CIT (APPEALS) IS ERRONEOUS, BOTH ON FACTS AND ON LAW. 2. THE LEARNED CIT(APPEALS) ERRED IN NOT GRANTING A DEQUATE OPPORTUNITY TO THE APPELLANT AND ADJUDICATING ON TH IS ISSUE, EX-PARTE, AFTER ISSUE OF ONE NOTICE ONLY. 3. THE LEARNED CIT(APPEALS) ERRED IN NOT APPRECIATI NG THAT THE ADDITION TO INCOME WERE MADE BASED ON THE DETAILS F URNISHED BY THE ASSESSEE AND THEREFORE LEVY OF PENALTY ON SUCH ADDI TIONS IS UN-TENABLE. 4. THE LD. CIT(A) ERRED IN NOT APPRECIATING THAT TH E ADDITIONS TO INCOME TOWARDS SUNDRY CREDITORS WERE MADE ONLY BECA USE APPELLANT COULD NOT PRODUCE THEM IN PERSON, THEREBY IGNORING THE FACT THAT CONFIRMATION LETTERS HAD BEEN FILED AND WHICH HAD B EEN ACCEPTED BY ITA NO. 2047/BANG/2018 PAGE 2 OF 3 THE A.O IN THE ORIGINAL ASSESSMENT PROCEEDINGS. 5. THE LEARNED CIT(APPEAL) ERRED IN NOT APPRECIATIN G THAT THE ADDITIONAL INCOME ASSESSED DID NOT RESULT IN CONCEA LMENT OF INCOME AS THE ADDITION WAS MADE ONLY BECAUSE OF NON-PRODUCTIO N OF SUNDRY CREDITORS. 6. THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THA T ASSESSMENT PROCEEDINGS ARE DIFFERENT FROM PENALTY PROCEEDINGS AND THE ADDITION MADE DUE TO NON-PRODUCTION OF SUNDER CREDITORS CANN OT BE A REASON FOR AUTOMATIC LEVY OF PENALTY. 7. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND DELETE ANY OF THE GROUNDS AT THE TIME OF HEARING. FOR THESE AND SUCH OTHER REASONS THAT MAY BE URGED AT THE TIME OF HEARING, IT IS RESPECTFULLY PRAYED THAT THE HON'BLE TRIBUNAL BE PLEASED TO PASS ORDERS GRANTING SUCH RELIEF AS IT MAY DEEM FIT IN THE INTEREST OF EQUITY AND JUSTICE. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR O F ASSESSEE THAT THE IMPUGNED ORDER OF CIT (A) IS EX-PARTE QUA THE ASSESSEE. HE SUBMITTED THAT ON PAGE NO. 1 OF THE IMPUGNED ORDER, IT IS NOTED BY CIT (A) THAT TWO DATES OF HEARING WERE FIXED BY HIM ON 27.05.2015 AND 04.01.2018 ALTH OUGH THE APPEAL WAS FILED BY THE ASSESSEE ON 29.07.2011. HE SUBMITTED THAT THE NOTICE REGARDING FIXATION OF APPEAL FOR HEARING ON 27.05.2 015 WAS NEVER SERVED ON THE ASSESSEE. REGARDING THE NOTICE FOR FIXATION OF THE HEARING OF THE APPEAL BY CIT (A) ON 04.01.2018, HE SUBMITTED THAT IN REPL Y TO THIS NOTICE, THE ASSESSEE HAS FILED AN APPLICATION BEFORE CIT (A) SE EKING ADJOURNMENT. HE SUBMITTED A COPY OF THIS NOTICE DATED 23.12.2017 IS SUED BY THE CIT(A) FIXING THE DATE OF HEARING ON 04.01.2018 AT 02:30 PM AND O F THE REPLY DATED 03.01.2018 FILED IN THE OFFICE OF THE CIT(A) ON 04. 01.2018 IN WHICH THE ASSESSEE HAS REQUESTED FOR ADJOURNMENT. HE SUBMITT ED THAT IN SPITE OF THIS REQUEST OF THE ASSESSEE FOR ADJOURNMENT, LD. CIT (A ) HAS PASSED THE IMPUGNED ORDER ON 28.02.2018 WITHOUT PROVIDING ANY FURTHER OPPORTUNITY TO ASSESSEE. HE SUBMITTED THAT UNDER THESE FACTS, THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF CIT (A) FOR FRESH DECI SION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A). ITA NO. 2047/BANG/2018 PAGE 3 OF 3 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND FORCE IN THE ARGUMENTS OF LD. AR OF ASSESSEE BECAUSE WE FIND THAT THE ASSE SSEE HAS REQUESTED FOR ADJOURNMENT ON 04.01.2018 AND ALTHOUGH THE IMPUGNED ORDER WAS PASSED BY CIT (A) ON 28.02.2018 I.E. AFTER MORE THAN ONE A ND HALF MONTH FROM THE DATE OF SEEKING ADJOURNMENT, NO FURTHER OPPORTUNITY WAS GRANTED BY CIT(A) TO THE ASSESSEE. HENCE WE FEEL IT PROPER TO SET AS IDE THE ORDER OF CIT (A) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH D ECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. WE ORDER ACCORDINGLY. IN VIEW OF THIS DECISION, NO ADJUDICATION ON MERIT IS CALLED FOR AT THE PRESENT STAGE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE ME NTIONED ON THE CAPTION PAGE. SD/- SD/- (LALIET KUMAR) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 28 TH FEBRUARY, 2019. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGAL ORE.