M/s Rajarajeshwari Associates , Madikere V. The Income Tax Officer Ward-1, Madikeri

ITA 2092/BANG/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2321 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 26-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR SHANKAR PRASAD
• Assessee Lawyers: PRUTHISHA
• Keywords: Unexplained cash credit; Income from undisclosed sources; Opportunity of being heard; Principle of natural justice; Condonation of delay
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH A SMC BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER ITA NO.2 092/BANG/2018 (ASST. YEAR 2012-13) M/S RAJARAJESHWARI ASSOCIATES, SY. NO.48, BLOCK NO.11, NEAR PATHRIKA BHAVAN, INDUSTRIAL ESTATE, MADIKERE, KODAGU DISTRICT. . APPELLANT PAN ABVFS0443B VS. THE INCOME-TAX OFFICER, WARD-1, MADIKERI. . RESPONDENT APPELLANT BY : SMT. PRUTHISHA, ADVOCATE RESPONDENT BY : DR. SHANKAR PRASAD, ADDL. CIT DATE OF HEARING : 12-7-2018 DATE OF PRONOUNCEMENT : 07-9-2018 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 THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (A) UPHOLDING THE ASSESSMENT IN AN EX-PARTE ORDER IS OP POSED TO LAW AND TO THE PRINCIPLES OF NATURAL JUSTICE AND AC CORDINGLY LIABLE TO BE CANCELLED. 2. THE LEARNED COMMISSIONER (A) HAS OBSERVED THAT T HE NOTICE OF HEARING WAS SERVED AND ON THE OTHER HAND THE AR DID NOT FILED P01. IF APPELLANT RECEIVED ANY NOTICE OF HEARING ITA NO.2092/B/18 2 WHICH PREVENTED THE APPELLANT TO REPRESENT THE CASE AT THE APPROPRIATE TIME AND ACCORDINGLY THE EX-PARTE AS MA DE BY THE COMMISSIONER (A) WAS OPPOSED TO LAW AND TO THE PRINCIPLES OF NATURAL JUSTICE AND THEREFORE LIABLE TO BE CANCELLED. 3. IN THE INTEREST OF JUSTICE, THE LEARNED COMMISSI ONER (A) OUGHT TO HAVE GIVEN ONE MORE OPPORTUNITY AT LEAST B Y ISSUING THE NOTICE OF HEARING TO THE REPRESENTATIVE OF THE APPELLANT WHOSE ADDRESS HAS ALSO BEEN PROVIDED IN THE APPEAL MEMO FOR THE SERVICE OF THE NOTICE AND HAVING FAILED DO SO, THE ORDER OF THE COMMISSIONER (A) IS OPPOSED TO LAW AND LIABL E TO BE SET ASIDE. 4. THE LEARNED COMMISSIONER (A) DID NOT DISPOSE OF THE GROUNDS RAISED BY THE APPELLANT AND ACCORDINGLY HIS ORDER IS UNSUSTAINABLE AND LIABLE TO BE CANCELLED. 5. THE LEARNED COMMISSIONER (A) ERRED IN UPHOLDING THE ADDITION OF RS.15,00,000/- TOWARDS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT WITHOUT APPRECIATING THE SUBMISSI ON OF THE APPELLANT. 6. THE LEARNED COMMISSIONER (A) ERRED IN UPHOLDING THE ADDITION OF RS. 2,60,000/- AS UNACCOUNTED INCOME WI THOUT APPRECIATING THE SUBMISSION OF THE APPELLANT. 7. THE LEARNED COMMISSIONER (A) ERRED IN UPHOLDING THE LEVY OF INTEREST U/S.234A, 2354B AND 234C OF THE ACT. 8. FOR THESE AND SUCH OTHER GROUNDS THAT MAY BE URG ED AT THE TIME OF HEARING, THE APPELLANT PRAYS THAT THE APPEA L MAY BE ALLOWED. 2. DURING THE COURSE OF HEARING, IT HAS BEEN PO INTED OUT THAT THERE WAS A DELAY OF 44 DAYS IN FILING THE APPEAL. THE DELAY W AS DULY EXPLAINED THROUGH THE APPLICATION FOR CONDONATION OF DELAY AL ONG WITH THE AFFIDAVIT EXPLAINING THE REASONS FOR DELAY IN FILING THE APP EAL. ITA NO.2092/B/18 3 3. FINDING FORCE IN THE APPLICATION FOR CONDON ATION OF DELAY, I CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING. 4. DURING THE COURSE OF HEARING, THE LD COUNSE L FOR THE ASSESSEE INVITED MY ATTENTION THAT THE CIT(A) WITHOUT AFFORDING PROP ER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, DISMISSED THE APPEAL. THE A PPEAL WAS LISTED FOR HEARING ONLY FOR 2 DAYS AND WITHOUT AFFORDING OPPOR TUNITY TO THE ASSESSEE TO ADJUDICATE THE CASE, THE CIT(A) DISMISSED THE APPEA L. IT WAS FURTHER CONTENDED THAT IN THE ORDER THERE WAS NO FINDING W ITH REGARD TO VALID SERVICE OF NOTICE OF HEARING UPON THE ASSESSEE. TH EREFORE, THE ORDER OF THE CIT(A) BE SET ASIDE AND APPEAL BE RESTORED TO HIS F ILE FOR RE-ADJUDICATION OF THE GROUNDS RAISED BEFORE THE CIT(A). 5. THE LD DR PLACED RELIANCE UPON THE ORDER OF THE CIT(A). 6. HAVING CAREFULLY EXAMINED THE ORDER OF THE AU THORITIES BELOW IN THE LIGHT OF THE RIVAL SUBMISSIONS, I FIND THAT CIT(A) HAS NOT RECORDED ANY FINDING WITH REGARD TO SERVICE OF NOTICE OF HEARING TO THE ASSESSEE. MOREOVER, THE CIT(A) HAS FIXED THIS APPEAL FOR HEAR ING ONLY FOR 2 DAYS. AFTER CAREFULLY EXAMINING THE ORDER OF THE CIT(A), I FIND THAT THERE IS NO SPECIFIC FINDING WITH REGARD TO SERVICE OF NOTICE O F HEARING UPON THE ASSESSEE, THEREFORE, I AM OF THE VIEW THAT CIT(A) HAS DECIDED THE APPEAL WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. I THEREFORE, SET ASIDE THE ORDER OF THE C IT(A) AND RESTORE THE MATTER TO HIS FILE FOR RE-ADJUDICATION OF THE ISSUES ON ME RITS AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORD INGLY, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ITA NO.2092/B/18 4 ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH SEPTEMBER, 2018 . SD/- (SUNIL KUMAR YADAV) JUDICIAL MEMBER BANGALORE DATED : 7/9/2018 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.2092/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. ..