Smt. Manjula Ravi, Bangalore V. Income Tax Officer, Ward- 4(3)(5), Bengaluru

ITA 2287/BANG/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7382 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 23-01-2020
• Assessment Year: 2011-2012
• Appeal Filed On: 30-10-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: MUKESH KUMAR
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 142(1); 234B; 250; 147; 68; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ITA NO.2287/BANG/2019 : ASST.YEAR 2011-2012 SMT.MANJULA RAVI NO.4031, PRESTIVE NOTTING HILL SR-09, BANNERGHATTA ROAD, NEAR MEENAXIMALL, KALENA, AGRAHARA, BILEKAHALLI BANGALORE 560 078. PAN : ACAPR0233Q. VS. THE INCOME TAX OFFICER WARD 4(3)(5) BENGALURU. (APPELLANT) (RESPONDENT) APPELLANT BY : SRI.MUKESH KUMAR, CA RESPONDENT BY : SRI.GANESH R.GHALE, STANDING COUNCIL FOR DR DATE OF HEARING : 23.01.2020 DATE OF PRONOUNCEMENT : 31.01.2020 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A), DATED 23.08.2019. THE RELEVANT ASSESSMENT YEAR IS 2011-12. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. THE IMPUGNED ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] U/S 250 AND THAT OF THE LEARNED ASSESSING OFFICER UNDER SECTION 144 OF THE ACT IS OPPOSED TO LAW, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE. 2. THE APPELLANT DENIES THE TAX LIABILITY OF TOTAL INCOME DETERMINED BY THE LEARNED ASSESSING OFFICER AMOUNTING TO RS. 50,00,000 AND CONFIRMED THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS], AS AGAINST THE INCOME REPORTED BY THE APPELLANT OF RS NIL ON THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO.2287/BANG/2019 SMT.MANJULA RAVI. 2 3. THE HONOURABLE CIT-(A), PASSED AN EX-PARTY ORDER, WITHOUT PROVIDING AN OPPORTUNITY OF BEING HEARD (I.E., NOT SERVING NOTICE TO THE ADDRESS MENTIONED IN FORM 35) WHEREBY THE ASSESSEE IS AGGRIEVED BY THE ORDER PASSED U/ S 250, BEING VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. 4. THE HONOURABLE CIT-(A) RELIED ONLY ON THE REASONS MENTIONED BY THE LEARNED ASSESSING OFFICER IN ASSESSMENT ORDER REGARDING NON-APPEARANCE BY ASSESSEE AND THEREBY AO PASSING ORDER UNDER SECTION 144 WITHOUT SERVING NOTICE UNDER SECTION 144 OR 142(1) OF THE ACT, AND AS THE SAID ORDER ITSELF IS BAD IN LAW AND VOID AB INTIO ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THE HONOURABLE CIT-(A) HAS NOT ADJUDICATED THE MATTER BASES ON ANY OF THE SPECIFIC GROUNDS OF APPEAL RAISED BY THE APPELLANT OR MERITS OF THE MATTER, INSTEAD PASSED AN EX-PARTY ORDER ONLY BY REFERRING THE POINT THAT AO HAS GIVEN SUFFICIENT OPPORTUNITY (WHICH IS CLEARLY DENIED BY THE APPELLANT IN GROUNDS OF APPEAL BEFORE HONOURABLE CIT). 6. THE LEARNED ASSESSING OFFICER HAS NOT SERVED MANDATORY NOTICE UNDER SECTION 148 TILL DATE. 7. THE LEARNED ASSESSING OFFICER HAS NOT OBTAINED THE REQUISITE PRIOR APPROVAL TO ISSUE NOTICE UNDER SECTION 148. 8. THE LEARNED ASSESSING OFFICER HAS NOT OBTAINED ANY SATISFACTION' FROM PRINCIPLE COMMISSIONER ON REASONS RECORDED. 9. THE LEARNED ASSESSING OFFICER HAS NOT PROVIDED ANY PROPOSAL FOR INITIATING BEST JUDGE ASSESSMENT, AND THEREBY ACTED UPON UNILATERALLY. 10. THE LEARNED ASSESSING OFFICER IS NOT JUSTIFIED IN MAKING ADDITION UNDER SECTION 68 UNDER THE ASSUMPTION THAT THE RS 50,00,000/- AS CASH DEPOSIT ITA NO.2287/BANG/2019 SMT.MANJULA RAVI. 3 WITHOUT ANY MATERIAL EVIDENCE OF ANY SUCH CASH DEPOSITS . 11. THE LEARNED ASSESSING OFFICER ALSO ERRED IN LEVYING THE INTEREST U/S. 234B AND U/S 234C OF THE ACT AND THE SAME ARE NOT IN ACCORDANCE WITH LAW ON THE FACTS AND CIRCUMSTANCES OF THE CASE. FURTHER, THE QUANTUM, PERIOD AND RATE ARE NOT DISCERNIBLE FROM THE ASSESSMENT ORDER. 12. THE APPELLANT CRAVES LEAVE OF THE HONBLE COMMISSIONER OF INCOME TAX (APPEALS) TO ADD, ALTER, MODIFY, DELETE OR SUBSTITUTE ANY OR ALL OF THE ABOVE GROUNDS OF APPEAL AS MAY BE NECESSARY AT THE TIME OF HEARING. 13. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF APPEAL, THE APPELLANT PRAYS THAT THE APPEAL MAY BE ALLOWED FOR THE ADVANCEMENT OF SUBSTANTIAL CAUSE OF JUSTICE AND EQUITY. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAS FILED APPEAL BEFORE THE CIT(A) ON 17.01.2019 FOR THE ASSESSMENT YEAR 2011-12, AGAINST THE ORDER DATED 17.12.2018, PASSED U/S 144 R.W.S. 147 OF THE I.T.ACT BY THE ASSESSING OFFICER. AS PER DECLARATION IN FORM NO.35, THE DATE OF SERVICE OF THE IMPUGNED ORDER AND THE DEMAND NOTICE IS STATED TO BE ON 21.12.2018. IN VIEW OF THIS, THE APPEAL WHICH HAS BEEN INSTATED ON 17.01.2019 IS FOUND TO BE IN TIME. THE A.O. REOPENED THE CASE AND COMPLETED THE ASSESSMENT U/S 144 R.W.S. 147 OF THE AT ON 17.12.2018 ASSESSING THE INCOME AT RS.50,00,000 THEREBY RAISING THE DEMAND OF RS.38,96,230. AGGRIEVED, THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A), WHO CONFIRMED THE ORDER OF THE ASSESSING OFFICER. ITA NO.2287/BANG/2019 SMT.MANJULA RAVI. 4 3. AGGRIEVED BY THE ORDERS OF THE INCOME TAX AUTHORITIES, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. THE MAIN PLEA OF THE ASSESSEE IS THAT NO OPPORTUNITY OF HEARING WAS GIVEN TO THE ASSESSEE. THE DEPARTMENT HAS SENT ALL NOTICES TO THE ASSESSEE IN HER OLD ADDRESS, I.E., NO.703, ORCHID TOWER, ASOPLAV COM, CHARWAD ROAD, NEAR GUJARATHI HIGH SCHOOL, VAPI 396 195, GUJARAT, THOUGH THE ASSESSEE HAS DULY FILED HER RETURN OF INCOME MENTIONING THE BANGALORE ADDRESS, I.E., NO.4031, PRESTIVE NOTTING HILL, SR-09, BANNERGHATTA ROAD, NEAR MEENAXIMALL KALENA, AGRAHARA, BILEKHALLI, BANGALORE 560 078. THE ASSESSEE SUBMITTED THAT ALL THE NOTICES WERE SENT TO THE OLD ADDRESS AT GUJARAT, HOWEVER, THE FINAL ASSESSMENT WAS SENT TO THE NEW ADDRESS AT BANGALORE. 4. I HAVE CAREFULLY GONE THROUGH THE LETTERS MADE BY THE ASSESSEE, AS RESPONDED BEFORE THE ASSESSING OFFICER THAT ALL NOTICES WERE SERVED TO THE GUJARAT ADDRESS OF THE ASSESSEE AND ALSO FILED THE APPEAL BEFORE THE CIT(A) STATING THE NEW ADDRESS OF BANGALORE. THE LEARNED COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO PARA 6 OF THE CIT(A)S ORDER, WHICH READS AS UNDER:- 6. DURING THE APPELLATE PROCEEDINGS, THE APPELLANT HAS BEEN GIVEN OPPORTUNITY OF APPEAR BEFORE ME TO PLEAD HIS APPEAL. THE CASE WAS POSTED FOR HEARING ON 23.08.2019 (NOTICE WAS DULY SERVED ON THE APPELLANT AND POSTAL ACKNOWLEDGEMENT PLACED ON FILE) ON WHICH DATE THE ASSESSEE NEITHER APPEARED NOR FILED ANY WRITTEN SUBMISSION IN THIS OFFICE. THEREFORE IT APPEARS THAT ASSESSEE HAS NOTHING TO SUBMIT AGAINST THE ORDER OF THE A.O. IN VIEW OF THE ITA NO.2287/BANG/2019 SMT.MANJULA RAVI. 5 SAME, I AM OF THE OPINION THAT THE APPELLANT IS NOT SERIOUSLY INTERESTED IN PURSUING HIS APPEALS, AS HE HAS NOTHING MORE TO SUBMIT. BASED ON THE RECORDS AVAILABLE BEFORE ME AND THE ATTITUDE OF THE ASSESSEE, FOLLOWING THE ITAT, BANGALORE ORDER IN THE CASE OF EUROMONITOR RESEARCH & CONSULTING (INDIA) PVT. LTD. VS. ACIT IN ITA NO.970/BANG/2018, I DISMISS THE GROUNDS OF APPEAL. 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. ADMITTEDLY, NOTICE OF HEARING WERE SENT TO THE ASSESSEE IN THE GUJARAT ADDRESS AND NOT TO THE BANGALORE ADDRESS. FURTHER, THE ASSESSEE HAS FILED HER RETURN OF INCOME AND APPEAL BEFORE THE CIT(A) STATING THE NEW ADDRESS IN BANGALORE. IN MY OPINION, IT IS NOT POSSIBLE TO CONFIRM THE ORDERS OF THE LOWER AUTHORITIES, AS THE NOTICES WERE NOT SERVED TO THE ASSESSEE. ACCORDINGLY, WE VACATE THE ORDERS OF THE LOWER AUTHORITIES AND THE ENTIRE ISSUE IN DISPUTE IS RESTORED TO THE FILES OF THE ASSESSING OFFICER FOR DECISION AFRESH. NEEDLESS TO SAY, THE ASSESSEE SHOULD BE GIVEN REASONABLE OPPORTUNITY OF BEING HEARD. IT IS ORDERED ACCORDINGLY. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 31 ST DAY OF JANUARY, 2020 . SD/- ( CHANDRA POOJARI ) ACCOUNTANT MEMBER BANGALORE ; DATED : 31 ST JANUARY, 2020. DEVADAS G* ITA NO.2287/BANG/2019 SMT.MANJULA RAVI. 6 COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(A)-4, BENGALURU. 4. THE PR.CIT-4, BENGALURU. 5. THE DR, ITAT, BENGALURU. 6. GUARD FILE. ASST.REGISTRAR/ITAT, BANGALORE