B M Habitat , Mysore V. Income Tax Officer Ward-1(1)(2), Mysore

ITA 2334/BANG/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5001 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 06-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIKAS SURYAVAMSHI
• Keywords: Depreciation; Opportunity of being heard; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI N. V. VASUDEVAN, VICE PRESIDENT AND SHRI JASON P. BOAZ, ACCOUNTANT MEMBER ITA NO. 2334 /BANG/201 8 ASSESSMENT YEAR : 20 1 4 - 1 5 M/S. B. M. HABITAT, NO.22, GOKULAM ROAD, JAYALAKSHMIPURAM, MYSURU 570 012. PAN : AAHFB 4898 E VS. INCOME-TAX OFFICER, WARD - 1(1)(2), MYSURU. APPELLANT RESPONDENT ASSESSEE BY : SHRI. NARENDRA SHARMA, ADVOCATE REVENUE BY : SHRI. VIKAS SURYAVAMSHI , ADDL. CIT DATE OF HEARING : 08 .0 7 .2019 DATE OF PRONOUNCEMENT : 21 .0 8 .2019 O R D E R PER JASON P. BOAZ, A.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE EX-PARTE ORDER OF CIT(A) - MYSURU, BANGALORE, DATED 16.05.2018 FOR ASSESSMENT YEAR 2014-15. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE AS UNDER:- 2.1 THE ASSESSEE, A FIRM ENGAGED IN EARNING RENTAL INCOME FROM LETTING OUT OF B M HABITAT MALL, FILED ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2014-15 ON 28.11.2014 DECLARING A LOSS OF RS. (-)1,90,42,103/-. THE CASE WAS TAKEN UP FOR SCRUTINY FOR THIS ASSESSMENT YEAR AND THE ASSESSMENT WAS CONCLUDED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) VIDE ORDER DATED ITA NO. 2334/BANG/2018 PAGE 2 OF 6 30.12.2016 WHEREIN THE ASSESSEES LOSS WAS DETERMINED AT RS.1,36,57,801/-, IN VIEW OF DISALLOWANCE OF THE ASSESSEES CLAIM OF DEPRECIATION AMOUNTING TO RS.53,46,659/-. 2.2 AGGRIEVED BY THE ORDER OF ASSESSMENT DATED 30.12.2016 FOR ASSESSMENT YEAR 2014-15, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) MYSURU. THE CIT DISMISSED THE ASSESSEES APPEAL EX-PARTE VIDE ORDER DATED 16.05.2018. 3. THE ASSESSEE, BEING AGGRIEVED BY THE ORDER OF THE CIT(A)-MYSORE DATED 16.05.2018 FOR ASSESSMENT YEAR 2014-15 HAS FILED THIS APPEAL BEFORE THE TRIBUNAL, WHEREIN IT HAS RAISED THE FOLLOWING GROUNDS:- ITA NO. 2334/BANG/2018 PAGE 3 OF 6 3.2 IN THE STATEMENT OF FACTS FILED BEFORE THE TRIBUNAL, THE ASSESSEE HAS SUBMITTED AS UNDER:- ITA NO. 2334/BANG/2018 PAGE 4 OF 6 ITA NO. 2334/BANG/2018 PAGE 5 OF 6 3.3.1 WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND FROM A PERUSAL / APPRAISAL OF THE IMPUGNED ORDER OF THE CIT(A) THAT ADMITTEDLY, THE ASSESSEE WAS AFFORDED ONLY ONE OPPORTUNITY OF HEARING BEFORE THE CIT(A) ON 16.05.2018 VIDE NOTICE ISSUED ON 08.05.2018. NON- ATTENDANCE BY THE ASSESSEE BEFORE THE CIT(A) ON 16.05.2018 FOR THIS SINGLE HEARING RESULTED IN CIT(A) DISMISSING THE ASSESSEES APPEAL EX-PARTE; WITHOUT HEARING THE ASSESSEE OR HAVING THE BENEFIT OF ITS SUBMISSION ON THE ISSUES RAISED IN APPEAL. 3.3.2 ACCORDING TO THE AVERMENTS PUT FORTH BY THE ASSESSEE BEFORE US IN THE STATEMENT OF FACTS (SUPRA), THE ISSUE OF DISPUTE IN THE APPEAL BEFORE THE CIT(A) I.E., THE DISALLOWANCE OF ASSESSEES CLAIM OF DEPRECIATION HAS BEEN ALLOWED BY THE CIT(A) IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2010-11 VIDE ORDER DATED 28.02.2017 AND THEREFORE IT WAS CONTENDED BY THE LEARNED AR THAT THE ASSESSEE HAS A GOOD CASE ON MERITS. APART FROM THIS, WE ALSO ARE OF THE VIEW THAT EXPLANATION PUT FORTH BY THE ASSESSEE, FOR ITS NON-ATTENDANCE ON THE ONLY HEARING AFFORDED BEFORE CIT(A) ON 16.,05.2018, IS PLAUSIBLE AND IN OUR VIEW CONSTITUTES REASONABLE AND SUFFICIENT CAUSE FOR NON-APPEARANCE BY THE ASSESSEE. FURTHER, WE ALSO FIND THAT THE APPEAL HAS BEEN DISPOSED OFF EX-PARTE WITHOUT THE BENEFIT OF HEARING THE ASSESSEE IN THE MATTER AND CONSIDERING THE SUBMISSIONS / PAST HISTORY OF THE CASE / ISSUES INVOLVED. THE ULTIMATE OBJECT OF ASSESSMENT IS THAT THE CORRECT INCOME OF THE ASSESSEE IS BROUGHT TO TAX AND THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, AS DISCUSSED ABOVE, WE ARE OF THE VIEW THAT FOR THE CAUSE OF SUBSTANTIAL JUSTICE TO BE SERVED, IT IS IMPERATIVE THAT THE IMPUGNED EX-PARTE ORDER OF THE CIT(A) FOR ASSESSMENT YEAR 2014-15 TO BE SET ASIDE AND DO SO AND CONSEQUENTLY RESTORE THE MATTER TO THE FILE OF THE CIT(A) FOR CONSIDERATION AND ADJUDICATION ON MERITS OF THE GROUNDS RAISED BY THE ASSESSEE IN THE APPEAL BEFORE THE CIT(A). NEEDLESS TO ADD, THE CIT(A) SHALL AFFORD THE ASSESSEE ADEQUATE AND REASONABLE OPPORTUNITY OF BEING HEARD AND TO FILE DETAILS / ITA NO. 2334/BANG/2018 PAGE 6 OF 6 SUBMISSIONS REQUIRED WHICH SHALL BE DULY CONSIDERED BY THE CIT(A) BEFORE DECIDING THE ISSUES. WE HOLD AND DIRECT ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES APPEAL FOR ASSESSMENT YEAR 2014-15 IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 21 ST AUGUST, 2019. SD/- SD/- (N. V. VASUDEVAN) (JASON P. BOAZ) VICE PRESIDENT ACCOUNTANT MEMBER BANGALORE. DATED: 21 ST AUGUST, 2019. /NS/* COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.