Mr. Ashok Lad. G, Bengaluru V. Deputy Commissioner of Income Tax Central Circle - 2 (3) , Bengaluru

ITA 2050/BANG/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7716 (ITAT-BANGALORE)
• Duration Of Justice: 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 18-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR SHANKAR PRASAD
• Assessee Lawyers: RAMASUBRAMANIAN
• Keywords: Opportunity of being heard
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH B SMC BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER ITA NO.2 050 TO 2053/BANG/2018 (ASST. YEARS 2002-03, 2003-04 , 200 6-07 & 2007-08) SHRI ASHOK LAD G, NO.8, 3 RD FLOOR, SNEHAR APARTMENT, 4 TH G MAIN, 4 TH CROSS, HRBR 2 ND BLOCK, KALYANA NAGAR, BANGALORE. . APPELLANT VS. THE DY. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-2(3), BANGALORE. . RESPONDENT APPELLANT BY : SHRI RAMASUBRAMANIAN, C.A RESPONDENT BY : DR. SHANKAR PRASAD, ADDL. CIT DATE OF HEARING : 9-7-2018 DATE OF PRONOUNCEMENT : 13-7-2018 O R D E R PER SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER : THESE APPEALS ARE PREFERRED BY THE ASSESSEE AGAINST THE RESPECTIVE ORDERS OF THE COMMISSIONER OF INCOME-TAX (APPEALS) FOR DIFFER ENT ASST. YEARS. ALMOST ALL GROUNDS ARE COMMON AND FOR THE SAKE OF REFERENCE, W E EXTRACT GROUNDS RAISED IN ITA NO.2050/BANG/2018 AS UNDER:- . 1. THE APPELLANT IS AN INDIVIDUAL. DURING THE PREV IOUS YEAR ENDED 31ST MARCH 2002 THE APPELLANT WAS ONLY A PART NER IN M/S. SUJATHA ENTERPRISES. APART FROM THE SHARE OF PROFIT OR LOSS FROM THE FIRM, THE APPELLANT HAD NO OTHER INCOME CHARGEA BLE TO INCOME TAX. THE APPELLANT'S WIFE MRS. SUJATHA LAD WAS SUBJ ECT TO A SEARCH ACTION U/S 132 OF INCOME TAX ACT 1961 (ACT) WHEREIN ACCORDING TO THE ASSESSING OFFICER CERTAIN DOCUMENTS MARKED AS A /SL/6(PAGES ITA NO.2050 TO 2 053/B/18 2 64TO 68) AND A/SL/9(PAGES 35 & 36) BELONGED TO THE APPELLANT. HENCE, A NOTICE WAS ISSUED ULS 153C OF THE ACT.. TH E NOTICE WAS ISSUED ON 7.8.2008. IT MAY BE STATED HERE THAT THE DURING THAT PERIOD, THE APPELLANT HAD SERIOUS DIFFERENCE OF OPI NION WITHT HIS WIFE SMT. SUJATHA WHICH UNFORTUNATELY CULMINATED IN DIVORCE. DUE TO THE ABOVE FACT THE APPELLANT WAS NOT IN A PROPER FRAME OF MIND AND DID NOT RESPOND TO THE NOTICES ISSUED BY THE LE ARNED ASSESSING OFFICER. IT MAY BE SATED HERE THAT THE CASE WAS CEN TRALIZED WITH DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2 (3) , BANGALORE. 2. THE APPELLANT HAD FILED RETURN FOR ASS ESSMENT YEAR 2004- 05 WHEREIN HE HAD DECLARED AN INCOME FROM HIS PROPR IETARY CONCERN M/S. ASHOK TRANSPORTS. THE APPELLANT COMMEN CED HIS BUSINESS ONLY DURING THE PREVIOUS YEAR ENDED 315T M ARCH 2004. THE APPELLANT DID NOT CARRY ON THE TRANSPORT BUSINE SS DURING THE PREVIOUS YEAR 315T MARCH 2002. 3. THE LEARNED ASSESSING OFFICER PASSED AN A SSESSMENT ORDER ULS 144 R.W.S 153C OF THE ACT WHEREIN HE ESTIMATED THAT THE APPELLANT WOULD HAVE EARNED A SUM OF RS. 8 LAKH AS INCOME FROM THE TRANSPORTATION BUSINESS. THE ONLY GROUND ON WHI CH THE LEARNED ASSESSING OFFICER CAME TO THIS CONCLUSION W AS THAT THE DURING THE PREVIOUS YEAR ENDED Z11 MARCH 2004 RELEV ANT TO ASSESSMENT YEAR 2004-05 THE APPELLANT HAD DECLARED INCOME FROM THE TRANSPORTATION BUSINESS. NO OTHER MATERIALS WER E BROUGHT ON RECORD B THE LEARNED ASSESSING OFFICER TO SUBSTANTI ATE THAT THE APPELLANT HAD CARRIED ON THE BUSINESS. 4. AGGRIEVED BY THE AFORESAID ORDER THE APPELL ANT MOVED AN APPEAL BEFORE THE LEARNED CIT(A)-6, BANGALORE. LATE R ON THE JURISDICTION WAS TRANSFERRED TO COMMISSIONER OF INC OME TAX (APPEALS)- L 1, BANGALORE. THE APPELLANT'S COUNSEL HAD FILED WRITTEN SUBMISSIONS FOR VARIOUS YEARS INCLUDING THE ASSESSMENT YEAR 2002-03 ON 11.12.2012. THE LEARNED COMMISSIONE R OF INCOME TAX (APPEALS)-L1, BANGALORE WITHOUT LOOKING INTO THE RECORDS PROPERLY HELD THAT THE APPELLANT DID NOT AP PEAR DESPITE THE FACT THAT THE CASE WAS FIXED FOR HEARING ON NUM EROUS OCCASIONS AND DISMISSED THE APPEAL FOR NON- PROSECU TION. AGGRIEVED BY THE AFORESAID ORDER THE APPELLANT IS M OVING THIS APPEAL BEFORE THE HON'BLE INCOME TAX APPELLATE TRIB UNAL SEEKING REDRESSAL OF ITS GRIEVANCES. THE FOLLOWING DOCUMENTS ARE ENCLOSED TO THIS APPEAL PETITION. ITA NO.2050 TO 2 053/B/18 3 1) APPELLATE ORDER DATED 26.4.2018 - ANNEXURE C 2) ASSESSMENT ORDER U/S 144 R.W.S 153C - ANNEXURE D 3) FORM 35, STATEMENT OF FACTS, GROUNDS OF - AN NEXURE E APPEAL FILED BEFORE CIT(A). 2. DURING THE COURSE OF HEARING, THE LD COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE ORDER OF THE CIT(A) WITH THE S UBMISSION THAT THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE EX-PARTE WITHOUT ADJUDICATING THE ISSUES RAISED ON MERIT. THEREFORE, THE ORDER OF TH E CIT(A) MAY BE SET ASIDE AND MATTER MAY BE RESTORED TO HIS FILE TO RE-ADJUDICATE THE ISSUES AFRESH AFTER AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. THE LD DR PLACED RELIANCE UPON THE ORDER O F THE CIT(A). 4. HAVING CAREFULLY EXAMINED THE ORDER OF THE CIT(A) AND IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT THE CIT(A) HAS RECORDED VARIOUS DATES OF HEARING IN ITS PARAS 2 AND 3 AND HE DISMISSED THE A PPEAL FOR NON- PROSECUTION. WHEREAS THE CIT(A) IS REQUIRED TO ADJ UDICATE THE APPEAL ON MERIT EVEN IF NONE APPEARS ON BEHALF OF THE ASSESS EE. THERE IS NO PROVISION IN THE ACT WHICH AUTHORIZE THE CIT(A) TO DISMISS TH E APPEAL FOR NON- PROSECUTION. I, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER TO HIS FILE TO RE-ADJUDICATE THE ISSUES RAIS ED BEFORE HIM ON MERIT BY PASSING REASONED ORDER AFTER AFFORDING PROPER OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLO WED FOR STATISTICAL PURPOSES. ITA NO.2050 TO 2 053/B/18 4 ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH JULY, 2018 . SD/- (SUNIL KUMAR YADAV) JUDICIAL MEMBER BANGALORE DATED : 13 /7/2018 VMS COPY TO :1. THE ASSESSEE 2. THE REVENUE 3.THE CIT CONCERNED. 4.THE CIT(A) CONCERNED. 5.DR 6.GF BY ORDER SR. PRIVATE SECRET ARY, ITAT, BANGALORE ITA NO.2050 TO 2 053/B/18 5 1. DATE OF DICTATION 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO SR.P.S .. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER .. 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S. .. 6. DATE OF UPLOADING THE ORDER ON WEBSITE .. 7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO .. 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. DATE ON WHICH ORDER GOES FOR XEROX & ENDORSEMENT.. 10. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 11. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 12. THE DATE ON WHICH THE FILE GOES TO DISPATCH SEC TION FOR DISPATCH OF THE TRIBUNAL ORDER . 13. DATE OF DESPATCH OF ORDER. ..