Padma K Bhat , Bangalore V. Assistant Commissioner of Income tax Circle-2(1), Bangalore

ITA 2338/BANG/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2315 (ITAT-BANGALORE)
• Duration Of Justice: 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 08-08-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M K BIJU
• Assessee Lawyers: VENKATESH KUMAR
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH B SMC BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER ITA NOS.2338 & 2339/BANG/2018 (ASST. YEAR 2006-07 & 20 07-08) PADMA K BHAT, 40/1, NAGADEVANAHALLI, JNANABHARATHI POST, BENGALURU. . APPELLANT PAN ABXPB1756C VS. THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-2(1), BENGALURU. . RESPONDENT APPELLANT BY : SHRI VENKATESHKUMAR, C.A RESPONDENT BY : SHRI M.K BIJU, ADDL. CIT DATE OF HEARING : 3-9-2018 DATE OF PRONOUNCEMENT : 7-9-2018 O R D E R PER SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER : THESE APPEALS ARE PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) ON COMMON GROU NDS. FOR THE SAKE OF REFERENCE, WE EXTRACT THE GROUNDS RAISED IN ITA NO. 2338/BANG/2018. 1. THE COMMISSIONER OF INCOME TAX (APPEALS)-3, BENG ALURU [HEREINAFTER REFERRED TO AS 'THE CIT(A)'] ERRED IN NOT CONDONING DELAY IN FILING APPEAL AND THEREBY DISMIS SING THE APPELLANT'S APPEAL IN LIMINE ON TECHNICAL GROUND WI THOUT DECIDING THE MERITS OF THE CASE. 2. HE FURTHER ERRED IN NOT CONSIDERING THE SPECIFI C DIRECTIONS GIVEN BY THE HON'BLE TRIBUNAL TO DECIDE THE CASE ON MERITS AND THEREBY COMMITTED CONTEMPT OF THE HON'BLE TRIBU NAL. ITA NOS.2338 & 23 39/B/18 2 3. HE FAILED TO APPRECIATE AND OUGHT TO HAVE HELD T HAT THERE ARE GOOD AND SUFFICIENT REASONS FOR THE DELAY IN FI LING THE APPEAL. 4. THE LEARNED CIT(A) HAS ERRED IN NOT CONSIDERING THE REQUEST FOR PERSONAL HEARING MADE BY THE APPELLANT AND ORDER WAS PASSED WITHOUT PROVIDING THE OPPORTUNITY OF BEI NG HEARD, THUS ORDER VITIATES FOR NON-COMPLIANCE OF 'PRINCIPL ES OF NATURAL JUSTICE'. 2. DURING THE COURSE OF HEARING, THE LD COUN SEL FOR THE ASSESSEE INVITED OUR ATTENTION TO THE ORDER OF THE LOWER AUT HORITIES WITH THE SUBMISSION THAT IN THE FIRST ROUND OF APPEAL, THE C IT(A) HAS DISMISSED THE APPEAL OF THE ASSESSES ON ACCOUNT OF LIMITATION HA VING HELD THAT THE APPEAL IS BARRED BY LIMITATION AS THERE WAS SUBSTAN TIAL DELAY IN FILING OF THE APPEAL. BESIDES THAT THE CIT(A) HAS ALSO ADJUD ICATED THE GROUNDS ON MERIT AND DISMISSED THE APPEAL. AGAINST THE FIND ING OF THE CIT(A) DISMISSING THE APPEAL ON MERIT, THE ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL. BEFORE THE TRIBUNAL THE FINDING OF THE C IT(A) DISMISSING THE APPEAL ON THE POINT OF LIMITATION WAS NOT CHALLENGE D, THEREFORE, THE FINDINGS OF THE CIT(A) THAT THE APPEAL IS BARRED B Y LIMITATION ON ACCOUNT OF SUBSTANTIAL DELAY IN FILING OF THE APPEAL ATTAIN S FINALITY. 3. ON MERIT THE TRIBUNAL SET ASIDE THE OR DER OF THE CIT(A) AND RESTORED THE MATTER TO THE CIT(A) FOR FRESH ADJUDIC ATION. CONSEQUENTLY, THE CIT(A) ADJUDICATED THE GROUNDS OF APPEAL AND HELD THAT SINCE THE APPEAL IS BARRED BY LIMITATION AND I T HAS ATTAINED FINALITY, THE GROUNDS RAISED ON MERIT CANNOT BE ADJUDICATED. HE H OWEVER ADJUDICATED THE GROUNDS ON MERIT PURSUANT TO THE DIRECTIONS OF THE TRIBUNAL AND DISMISSED THE APPEAL ON MERIT ALSO. 4. NOW THE ASSESSEE IS BEFORE US AND RAISED AR GUMENTS ON DISMISSING THE APPEAL ON MERIT. ITA NOS.2338 & 23 39/B/18 3 5. WHEN THE ATTENTION OF THE ASSESSEE WAS INV ITED TO THE ORDER OF THE CIT(A) DISMISSING THE GROUNDS ON THE POINT OF LIMIT ATION, THE LD COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT DESPITE THE DIS MISSAL OF APPEAL ON THE POINT OF LIMITATION, THE CIT(A) HAS ADJUDICATED THE GROUNDS ON MERIT AND IT AMOUNTS TO ACCEPTANCE OF THE REASONS FOR THE DEL AY IN FILING THE APPEAL BEFORE THE CIT(A). THEREFORE, NOW THE CIT(A) CANNOT REJECT THE APPEAL ON THE PLEA THAT THE APPEAL IS BARRED BY LIMITATIO N. 6. THE LD DR PLACED RELIANCE UPON THE ORDER OF THE CIT(A). 7. HAVING CAREFULLY EXAMINED THE ORDER OF THE CIT(A), I FIND THAT THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE BEI NG BARRED BY LIMITATION HAVING HELD THAT THERE WAS SUBSTANTIAL DELAY IN FILING OF THE APPEAL WHICH CANNOT BE CONDONED. THIS FINDING OF T HE CIT(A) WAS NEVER CHALLENGED BY THE ASSESSEE BEFORE THE TRIBUNAL, THE REFORE IT ATTAINS THE FINALITY. ONCE THE APPEAL IS NOT ADMITTED FOR DISP OSAL ON ACCOUNT OF DELAY IN FILING THE APPEAL, THE CIT(A) CANNOT ADJUDICAT E THE GROUNDS ON MERIT. THOUGH THE TRIBUNAL HAS GIVEN SUCH DIRECTIONS WITHO UT APPRECIATING THE FACT THAT THE CIT(A) HAS DISMISSED THE APPEAL BEING BARRED BY LIMITATION AT THE THRESHOLD. IT APPEARS THAT THESE FACTS MIGH T NOT HAVE BEEN BROUGHT THE NOTICE OF THE TRIBUNAL AT THE TIME OF HEARING O F THE APPEAL. THE FINDING ON MERIT GIVEN BY THE CIT(A) PURSUANT TO TH E DIRECTION OF THE TRIBUNAL WILL NOT HAVE ANY MERIT ON THE FACT THAT THE APPEAL WAS NOT AT ALL ADMITTED FOR HEARING AT THE FIRST INSTANCE. IN THE LIGHT OF THESE FACTS, I AM OF THE VIEW THAT THE CIT(A) IS PRECLUDED FROM ADJUD ICATING THE APPEAL ON MERIT. THEREFORE, THE FINDING GIVEN ON MERIT HAS N O RELEVANCE. MOREOVER, THE CIT(A) HAS ALSO DISMISSED THE APPEAL ON MERIT. UNDER THESE CIRCUMSTANCES, I FIND THAT NO MERIT IN THE ASSESSEE S APPEAL. 8. IN THE RESULT, APPEALS OF THE ASSESSEE STAND D ISMISSED. ITA NOS.2338 & 23 39/B/18 4 ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH SEPT, 2018 . SD/- (SUNIL KUMAR YADAV) JUDICIAL MEMBER BANGALORE DATED : 7/9/2018 VMS COPY TO :1. THE ASSESSEE 2. THE REVENUE 3.THE CIT CONCERNED. 4.THE CIT(A) CONCERNED 5.DR 6.GF BY ORDER SR. PRIVATE SECRET ARY, ITAT, BANGALORE. ITA NOS.2338 & 23 39/B/18 5 1. DATE OF DICTATION 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO SR.P.S .. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER .. 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S. .. 6. DATE OF UPLOADING THE ORDER ON WEBSITE .. 7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO .. 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. DATE ON WHICH ORDER GOES FOR XEROX & ENDORSEMENT 10. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 11. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 12. THE DATE ON WHICH THE FILE GOES TO DISPATCH SEC TION FOR DISPATCH OF THE TRIBUNAL ORDER . 13. DATE OF DESPATCH OF ORDER. ..