Shri G. Venkatesh, Mysore V. Income Tax ward - 3(3), Mysore

ITA 2091/BANG/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7719 (ITAT-BANGALORE)
• Duration Of Justice: 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 26-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR SHANKAR PRASAD
• Assessee Lawyers: PRATIBHA
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause
• Section: 234B; 147; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH C, SMC BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER ITA NO.2 091/BANG/2018 (ASST. YEAR 2007-08) SHRI G VENKATESH, NO.104, 10 TH CROSS, GANGOTHRI LAYOUT, MYSORE. . APPELLANT VS. THE INCOME-TAX OFFICER, WARD-2(3), MYSORE. . RESPONDENT APPELLANT BY : SMT. PRATIBHA, ADVOCATE 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 : THIS APPEAL IS PREFERRED BY THE ASSESSEE AGA INST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) INTER ALIA ON FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED CIT (A) ERRED IN PASSING THE ORDER IN THE M ANNER WHICH HE DID. 2. THE CONDITIONS PRECEDENT BEING ABSENT, THE REOPE NING ASSESSMENT U/S 147 IS BAD IN LAW. 3. THE LEARNED CIT (A) HAVING NOT ADJUDICATED THE S UBMISSION MADE BY THE APPELLANT TOWARDS THE VALIDITY OF THE R EOPENING U/S 147 OF THE ACT PRIOR TO THE COMMENCEMENT OF ASSESSM ENT PROCEEDINGS, THE ASSESSMENT AS MADE WAS OPPOSED TO LAW AND ITA NO.2091/B/18 2 AGAINST THE PRINCIPLES OF NATURAL JUSTICE AND THUS LIABLE TO BE CANCELLED. 4. THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISAL LOWANCE OF RS. 3,75,000/- TOWARDS THE DEDUCTION CLAIMED U/S 54 F OF THE ACT, WITHOUT APPRECIATING THE SUBMISSION OF THE APP ELLANT. 5. THE LEARNED CIT (A) OUGHT TO HAVE APPRECIATED TH AT THE LTCG HAS TO BE CALCULATED FROM THE DATE OF ALLOTMEN T LETTER AND NOT FROM THE DATE WHEN SALE AGREEMENT REGISTERE D. THUS THE DISALLOWANCE HAS TO BE DELETED. 6. THE LEARNED CIT (A) ERRED IN CONFIRMING THE INTE REST U/S 234A AND 234B OF THE ACT LEVIED BY THE AO. 7. WITHOUT PREJUDICE, THE ADDITION IS EXCESSIVE, AR BITRARY AND UNREASONABLE AND LIABLE TO BE DELETED IN TOTO. 8. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF APPEAL THE APPELLANT PRAYS THAT THE APPE AL MAY BE ALLOWED. 2. DURING THE COURSE OF HEARING, THE LD COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION THAT THE CIT(A) HAS ADJUDICAT ED THE APPEAL EX-PARTE WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN HIS ENTIRE ORDER HE HAS NOT RECORDED ANY FINDING WITH R EGARD TO SERVICE OF NOTICE OF HEARING UPON THE ASSESSEE. THEREFORE, THE ORDER OF THE CIT(A) DESERVES TO BE SET ASIDE. 3. THE LD DR PLACED RELIANCE UPON THE ORDER OF THE CIT(A) CONFIRMING THE ADDITION. 4. HAVING CAREFULLY EXAMINED THE ORDER OF THE LOWER AUTHORITIES, WE FIND THAT THERE IS A DELAY OF 27 DAYS IN FILING OF APPEA L. THE DELAY WAS EXPLAINED BY FILING OF AN AFFIDAVIT BEFORE THE TRIBUNAL, ACCO RDING TO WHICH, THE APPEAL COULD NOT BE FILED IN TIME ON ACCOUNT OF ILL NESS OF THE ASSESSEE. I CAREFULLY EXAMINED THE APPLICATION OF CONDONATION O F DELAY AND I FIND THAT ITA NO.2091/B/18 3 THERE IS A REASONABLE CAUSE WITH THE ASSESSEE FOR D ELAY IN FILING OF THE APPEAL. THEREFORE, WE CONDONE THE DELAY AND ADMIT T HE APPEAL FOR HEARING. 5. SO FAR AS ADJUDICATION OF THE APPEAL EX-PARTE IS CONCERNED, I FIND THAT THE CIT(A) HAS DECIDED THE APPEAL EX-PARTE WITHOUT AFFO RDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. FROM PE RUSAL OF THE ORDER OF THE CIT(A), I FIND THAT CIT(A) HAS NOT EVEN RECORDED TH E FINDINGS WITH REGARD TO VALID SERVICE OF NOTICE OF HEARING UPON THE ASSE SSEE. 6. KEEPING IN VIEW ON THE TOTALITY OF THE FACTS A ND CIRCUMSTANCES OF THE CASE, I SET ASIDE THE ORDER OF THE CIT(A) AND RESTO RE THE MATTER TO HIS FILE WITH A DIRECTION TO RE-ADJUDICATE THE APPEAL AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. 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.2091/B/18 4 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. ..