A AROCKIA DASS , Bangalore V. Income Tax Officer Ward-5(3)(3), Bangalore

ITA 2322/BANG/2018

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 0775 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 06-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: HARSHA K M
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-B BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER ITA NO. 2 322 /BANG/2018 ASSESSMENT YEAR : 20 10 - 11 SHRI. A. AROCKIA DASS, #14, 1 ST MAIN, VINDYA HOMES LAYOUT, SHANTHIPURA, HUSKUR POST, BENGALURU 560 100. PAN : AKHPD 4879 R VS. INCOME-TAX OFFICER, WARD 5(3)(3), BENGALURU. APPELLANT RESPONDENT ASSESSEE BY : SHRI. HARSHA K. M , ADVOCATE REVENUE BY : SHRI. PRIYADARSHI MISHRA, JCIT, SPECIAL RANGE - III DATE OF HEARING : 14 .0 8 .2018 DATE OF PRONOUNCEMENT : 05 . 10 .2018 O R D E R PER SUNIL KUMAR YADAV, JUDICIAL MEMBER THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A), INTER ALIA, ON FOLLOWING GROUNDS: 1. THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-12 IS AGAINST NATURAL JUSTICE AND BAD IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-12 ERRED IN PASSING AN EX-PARTY ORDER WITHOUT GIVING AN OPPORTUNITY OF PROPER HEARING TO THE APPELLANT. AND FURTHER, THE ORIGINAL JURISDICTION OF APPEAL WAS WITH CIT(A)-5, BANGALORE, BUT WITHOUT GIVING ANY INTIMATION AS PER PROVISION OF SECTION 129 OF THE ACT, THE ORDER HAS BEEN PASSED BY DIFFERENT CIT(A) WITHOUT GIVING ANY INTIMATION. 3. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-12 HAS MENTIONED THAT NOTICES WERE SENT ON VARIOUS DATES, WHICH WAS SENT TO THE OLD ADDRESS OF THE APPELLANT AND HAS STATED THAT THERE IS NO RESPONSE FOR THE NOTICE. ITA NO.2322/BANG/2018 PAGE 2 OF 3 4. THE APPELLANT SUBMITS THAT THERE HAS BEEN CHANGE IN THE ADDRESS, WHICH HAS BEEN MENTIONED IN THE SUBSEQUENT INCOME TAX RETURNS, WHICH IS ALREADY ON INCOME TAX RECORDS AND THEREFORE NON-DELIVERY OF THE NOTICE CANNOT BE THE REASON FOR PASSING AN EX-PARTY ORDER. 5. EVEN THE APPEAL ORDER WAS NOT SERVED ON THE APPELLANT AND THE APPELLANT WAS SHOCKED TO LEARN FROM THE HDFC BANK, WHERE THE APPELLANT HOLDS AN ACCOUNT THAT, BY NOTICE DATED 12.06.2018, RECEIVED FROM INCOME TAX DEPT., THE BANK ACCOUNT WAS ATTACHED BY THE INCOME TAX DEPT. ONLY THEN THE APPELLANT GOT TO KNOW THAT EX-PARTY ORDER HAS BEEN PASSED DISMISSING THE APPEAL FILED BY THE OFFICE TO THE APPELLANT. HENCE, PERSONALLY THE APPELLANT WENT TO THE CIT(A)-12 AND COLLECTED THE ORDER ON 18.07.2018. 6. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-12 HAS GONE ON THE BASIS OF THE ORDER PASSED BY THE ASSESSING OFFICER, WHERE THE ASSESSING OFFICER ON CERTAIN PRESUMPTION AND PROBABILITY HAS ADDED A SUM OF RS.15,10,000/- AS ADDITIONAL INCOME TO THE APPELLANT. 7. THE APPELLANT SUBMITS THAT THE AMOUNT OF RS.13,30,000/- WAS WITHDRAWN FROM THE BANK ON 15.01.2010, WHICH HAS BEEN DEPOSITED BACK INTO BANK ACCOUNT DURING THE MONTH OF FEBRUARY/MARCH 2010. THEREFORE THERE IS NO REASON FOR PRESUMING THAT THE CASH MUST HAVE BEEN DEPOSITED INTO THE BANK WHICH IS NOT EXPLAINABLE. 8. THE LEARNED ASSESSING OFFICER WAS WRONG TO PRESUME THAT NORMAL PRACTICE THE REGISTRATION HAPPENS FOR LESSER THAN THE AMOUNT OF ACTUAL PAYMENT. 9. THE APPELLANT HUMBLY SUBMITS THAT HE HAS NOT SOLD ANY PROPERTY TO GET CASH AMOUNT IN EXCESS OF REGISTRATION CHARGES, WHICH IS PRESUMED TO BE DEPOSITED BY THE LEARNED A.O. IN CASH IN THE BANK. THE APPELLANT HAS ONLY PURCHASED PROPERTY; IN THAT CASE THERE SHOULD HAVE BEEN MORE WITHDRAWAL OF CASH THAN DEPOSIT OF CASH INTO THE BANK. 10. THE APPELLANT FURTHER SUBMITS THAT ON PRESUMPTION THE ADDITION MADE IS WRONG. 11. FOR THE ABOVE & ANY OTHER GROUNDS THAT MAY BE ADVANCED AT THE TIME OF HEARING, THE APPELLANT PRAYS THAT THE APPEAL BE ALLOWED. 2. DURING THE COURSE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION THAT CIT(A) HAS DISMISSED THE APPEAL EX-PARTE ITA NO.2322/BANG/2018 PAGE 3 OF 3 WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. DESPITE REQUEST OF THE ASSESSEE, THE CIT(A) HAS NOT AFFORDED OPPORTUNITY AND DISPOSED OFF THE APPEAL EX-PARTE THAT TOO NOT ON MERIT. 3. THE LEARNED DR ON THE OTHER HAND PLACED RELIANCE UPON THE ORDER OF CIT(A). 4. HAVING CAREFULLY EXAMINED THE ORDERS OF LOWER AUTHORITIES IN THE LIGHT OF RIVAL SUBMISSIONS, WE FIND THAT CIT(A) HAS DISPOSED OFF THE APPEAL EX-PARTE WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO READJUDICATE THE GROUNDS RAISED BEFORE HIM ON MERIT, AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 5 TH DAY OF OCTOBER, 2018. SD/- SD/- (A. K. GARODIA) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE. DATE: 5 TH OCTOBER, 2018. /NS/ COPY TO: 1. APPELLANTS 2. RESPONDENTS 3. CIT 4. CIT(A) 5. DR 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY ITAT, BANGALORE