Amit Avinash Bhosale, Pune V. Addl. Commissioner of Income tax, Range-3, Pune

ITA 2225/PUN/2017

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 8905 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 05-01-2021
• Assessment Year: 2009-2010
• Appeal Filed On: 25-09-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Earning of tax free income; Rule 8D
• Section: 143(3); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE (THROUGH VIRTUAL COURT) BEFORE SHRI INTURI RAMA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM . / ITA NO.2225/PUN/2017 / ASSESSMENT YEAR : 2009-10 AMIT AVINASH BHOSALE, 2, ABIL HOUSE, RANGE HIL CORNER, GANESH KHIND ROAD, PUNE-411001. PAN : AFDPB3400P ....... / APPELLANT / V/S. ADDL. CIT, RANGE-3, PUNE. / RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI SUDHENDU DAS / DATE OF HEARING : 05.01.2021 / DATE OF PRONOUNCEMENT : 06.01.2021 / ORDER PER INTURI RAMA RAO, AM: THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-3, PUNE (CIT(A) FOR SHORT) DATED 01.06.2017 FOR THE ASSESSMENT YEAR 2009-10. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE APPELLANT IS AN INDIVIDUAL DERIVING INCOME FROM THE BUSINESS OF PROVIDING CONSULTANCY SERVICES TO THE BUILDERS. THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009-10 WAS FILED ON 30.10.2009 DISCLOSING TOTAL INCOME OF RS.17,04,26,110/-. AGAINST THE SAID RETURN OF INCOME, THE ASSESSMENT WAS COMPLETED BY THE ADDL. COMMISSIONER OF INCOME TAX, RANGE-3, PUNE (THE ASSESSING OFFICER FOR SHORT) VIDE ORDER DATED 16.12.2011 PASSED U/S 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT FOR 2 ITA NO.2225/PUN/2017 SHORT) AT A TOTAL INCOME OF RS.17,12,02,902/- AFTER MAKING DISALLOWANCE OF RS.7,76,789/- UNDER THE PROVISIONS OF SECTION 14A OF THE ACT READ WITH RULE 8D OF THE INCOME TAX RULES, 1962 (THE RULES FOR SHORT) REJECTING THE CONTENTION OF THE APPELLANT THAT ONLY AN EXPENDITURE OF RS.77,700/- (BEING 10% OF THE TOTAL INCOME) WAS INCURRED TO EARN THE EXEMPT INCOME OF RS.1,11,97,098/-. 3. BEING AGGRIEVED BY THE ABOVE DISALLOWANCE, AN APPEAL WAS PREFERRED BEFORE THE LD. CIT(A), WHO VIDE HIS IMPUGNED ORDER DISMISSED THE APPEAL WITHOUT ADMITTING THE APPEAL FOR NON-PROSECUTION. 4. BEING AGGRIEVED BY THE DISMISSAL OF APPEAL BY THE LD. CIT(A), THE APPELLANT IS BEFORE US IN THE PRESENT APPEAL. 5. EVEN BEFORE US WHEN THE APPEAL WAS CALLED FOR HEARING NONE APPEARED ON BEHALF OF THE APPELLANT-ASSESSEE DESPITE DUE SERVICE OF NOTICE. AFTER HEARING THE LD. SR. CIT-DR, WE PROCEED TO DISPOSE OF THIS MATTER. FROM THE PERUSAL OF THE IMPUGNED ORDER, IT IS CLEAR THAT THE LD. CIT(A) WHILE PASSING THE EX-PARTE ORDER HAD NOT ADJUDICATED THE ISSUE RAISED IN APPEAL ON MERITS, INSTEAD THE LD. CIT(A) HELD THAT THE APPEAL IS NOT ADMITTED FOR WANT OF PROSECUTION OF APPEAL. THIS APPROACH OF THE LD. CIT(A) IS TOTALLY UNREASONABLE AND UNJUSTIFIED. THE LD. CIT(A) FELL IN SERIOUS ERROR BY NOT ADMITTING THE APPEAL FOR NON-PROSECUTION. THE SETTLED POSITIONS OF LAW MANDATES THE CIT(A) TO DISPOSE OF THE APPEAL BY ADJUDICATING THE ISSUE RAISED IN APPEAL ON MERITS. IN THE PRESENT CASE, THE LD. CIT(A) HAD FELL INTO SERIOUS ERROR BY HOLDING THAT THE APPEAL IS NOT ADMITTED FOR NON-PROSECUTION OF APPEAL. THEREFORE, WE VACATE THIS FINDING OF THE LD. CIT(A). 3 ITA NO.2225/PUN/2017 6. IN THE CIRCUMSTANCES, WE REMAND THE MATTER BACK TO THE FILE OF THE LD. CIT(A) AND DIRECT HIM TO DISPOSE OF THE APPEAL ON MERITS IN ACCORDANCE WITH LAW AFTER AFFORDING DUE OPPORTUNITY OF BEING HEARD TO THE APPELLANT. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 06 TH DAY OF JANUARY, 2021. SD/- SD/- (PARTHA SARATHI CHAUDHURY) (INTURI RAMA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 06 TH JANUARY, 2021. SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-3, PUNE. 4. THE PR. CIT-2, PUNE. 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.