Late Smt Gowramma by Legal Representative Sri V Krishnamurthy , Bangalore V. Income Tax Officer Ward-5(2)(4), Bangalore

ITA 2113/BANG/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2172 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 02-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VANDANA SAGAR
• Assessee Lawyers: H V GOWTHAMA
• Keywords: Opportunity of being heard
• Section: 154; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER A ND SHRI LALIET KUMAR, JUDICIAL MEMBER ITA NO. 2113 /BANG/201 8 ASSESSMENT YEAR : 20 13 - 14 LATE SMT. GOWRAMMA BY LEGAL REPRESENTATIVE SRI V. KRISHNAMURTHY, NO. 22, 1 ST MAIN ROAD, 2 ND CROSS, DEEPANJALINAGAR, BANGALORE 560 026. PAN: BFSPG4228N VS. THE INCOME TAX OFFICER, WARD 5 (2) (4), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI H.V. GOWTHAMA, CA RESPONDENT BY : SMT. VANDANA SAGAR, CIT (DR) DATE OF HEARING : 12 . 11 .2018 DATE OF PRONOUNCEMENT : 16 . 11 .2018 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)-5, BANGALORE DATED 17.09.2018 FOR ASSES SMENT YEAR 2013-14. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE LEARNED COMMISSIONER OF INCOME TAX ERRED IN CONFIRMING THE ORDER OF THE LEARNED INCOME TAX OFFICER, WHO HAD DI SALLOWED THE CLAIM OF THE APPELLANT TOWARDS EXEMPTION U/S.10(37) BEING COMPENSATION RECEIVED FOR ACQUIRING AN URBAN AGRICU LTURAL LAND FOR THE PURPOSE OF METRO TRAIN. 2. THE LEARNED COMMISSIONER OF INCOME TAX WAS WRONG IN NOT APPRECIATING THE FACT THAT AS PER PROVISIONS OF SEC TION 10(37), ANY COMPENSATION RECEIVED WOULD BE EXEMPT UNDER THE PRO VISIONS OF RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUI SITION, REHABILITATION AND RESETTLEMENT ACT, 2013 (HEREINAF TER REFERRED AS `RFCTLAAR ACT'). 3. THE LEARNED COMMISSIONER OF INCOME TAX OUGHT TO HAVE APPRECIATED THE FACT THAT AS PER THE CIRCULAR ISSUE D BY CENTRAL BOARD OF DIRECT TAXES VIDE ITS CIRCULAR NO.36/2016 DATED 25.10.2016, ANY COMPENSATION RECEIVED BY ANY APPELLANT FOR COMPULSO RY ACQUISITION OF URBAN AGRICULTURAL LAND WOULD BE EXEMPT. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN ITA NO. 2113/BANG/2018 PAGE 2 OF 3 STATING THAT SINCE THE LAND SITUATED WITHIN 8 KMS. OF URBAN AREA CANNOT BE CONSIDERED AS AGRICULTURAL AND FURTHER TH ERE WAS ALSO A BUILDING ON THE SAID LAND, HENCE THE APPELLANT IS N OT ENLISTED FOR EXEMPTION UNDER RFCTLAAR ACT. 5. FOR THE ABOVE AND ANY OTHER GROUNDS THAT MAY BE ADVANCED AT THE TIME OF HEARING, THE APPELLANT PRAYS THAT THE APPEA L BE ALLOWED. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR O F ASSESSEE THAT THERE WERE SOME APPARENT MISTAKES IN THE ORDER PASSED BY CIT ( A) AND HE POINTED OUT THAT IN THE SAID ORDER, THE DATE OF ORDER IS STATED TO BE 11.05.2018 AND THE DATE OF HEARING WAS STATED TO BE 09.05.2016. THERE AFTER, HE SUBMITTED THAT THE ASSESSEE MOVED AN APPLICATION FOR RECTIFICATION U/S. 154 BEFORE LD. CIT (A) AND THEREAFTER, THE CIT (A) HAS PASSED AN ORDER U/S. 154 OF IT ACT, COPY OF WHICH IS ALREADY SUBMITTED BEFORE THE TRIBUNAL. HE POINTED OUT THAT AS PER THIS ORDER OF CIT(A) U/S. 154, IT HAS BEEN STAT ED BY LD. CIT(A) THAT DATE OF HEARING SHOULD BE READ AS 09.05.2018 IN PLACE OF 09 .05.2016. HE ALSO SUBMITTED THAT THIS IS ALSO STATED BY CIT (A) IN PA RA 2(2) OF THIS ORDER PASSED BY HIM U/S. 154 THAT THE ORDER OF LD. CIT (A) HAS B EEN PASSED AFTER THE DEATH OF THE ASSESSEE SMT. GOWRAMMA AND THEREFORE, NAME O F THE LEGAL REPRESENTATIVE OF SMT. GOWRAMMA I.E. HER SON SRI V. KRISHNA MURTHYS NAME HAS BEEN BROUGHT ON RECORD IN PLACE OF SMT. GOWRAMM A. AT THIS JUNCTURE, THE BENCH WANTED TO KNOW REGARDING THE DATE OF THE DEATH OF THE ASSESSEE AND IN REPLY, THE LD. AR OF ASSESSEE SUBMITTED COPY OF DEATH CERTIFICATE DATED 07.05.2018 AS PER WHICH THE ASSESSEE HAS EXPI RED ON 07.05.2018. THE BENCH ALSO WANTED TO KNOW AS TO WHETHER ON THE LAST DATE OF HEARING AS PER THE ORDER PASSED BY CIT(A) U/S. 154 I.E. 09.05. 2018, ANY OPPORTUNITY OF HEARING WAS PROVIDED TO THE LEGAL REPRESENTATIVE OF THE ASSESSEE I.E. HER SON SHRI V. KRISHNA MURTHY AND IN REPLY, IT WAS SUB MITTED BY LD. AR OF ASSESSEE THAT NO SUCH OPPORTUNITY WAS PROVIDED TO T HE LEGAL REPRESENTATIVE OF THE ASSESSEE AND SHRI GOWTHAMA, CA WHO WAS PRESE NT BEFORE CIT(A) WAS AR OF ASSESSEE AND NOT HER LEGAL REPRESENTATIVE . UNDER THESE FACTS, THE BENCH OBSERVED THAT THE ORDER OF CIT (A) HAS TO BE SET ASIDE AND THE MATTER HAS TO BE RESTORED BACK TO HIS FILE FOR FRES H DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO LEGAL REPRES ENTATIVE OF THE ASSESSEE AND ALSO AFTER PROVIDING ADEQUATE OPPORTUNITY OF BE ING HEARD TO THE AO. IN REPLY, BOTH SIDES AGREED TO THIS PROPOSITION PUT FO RWARD BY THE BENCH. ITA NO. 2113/BANG/2018 PAGE 3 OF 3 4. IN VIEW OF THE ABOVE DISCUSSION, THE IMPUGNED OR DER OF CIT (A) IS SET ASIDE AND THE MATTER IS RESTORED BACK TO HIS FILE FOR FRE SH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES I .E. THE AO AND THE LEGAL REPRESENTATIVE OF THE ASSESSEE. THE LD. CIT(A) IS ALSO DIRECTED TO OBTAIN A REPORT FROM THE AO IN RESPECT OF LEGAL REPRESENTATI VE OF THE ASSESSEE ALSO AS TO WHETHER HE IS THE ONLY LEGAL REPRESENTATIVE OF A SSESSEE OR THERE IS SOMEBODY ELSE ALSO WHO IS ALSO REQUIRED TO BE BROUG HT ON RECORD AS LEGAL REPRESENTATIVE OF THE ASSESSEE. IN VIEW OF THIS DE CISION, NO ADJUDICATION ON MERIT IS CALLED FOR AT THE PRESENT STAGE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (LALIET KUMAR) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 16 TH NOVEMBER, 2018. /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, BANGALORE.