Shri Govindarajulu Setty Prasad , Bangalore V. Income Tax Officer Ward-7(2)(5), Bangalore

ITA 2371/BANG/2018

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 2630 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 14-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K BIJU
• Assessee Lawyers: LOKESH JAIN
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH B SMC BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER ITA NO.2 371/BANG/2018 (ASST. YEAR 2015-16) SHRI GOVINDARAJULU SETTY PRASAD, NO.579, SRI LAKSHMI NIVAS, 1 ST A MAIN ROAD, JAYNAGAR, 8 TH BLOCK, BENGALURU. . APPELLANT PAN AHMPP8276E. VS. THE INCOME-TAX OFFICER, WARD-7(2)(5), BENGALURU. . RESPONDENT APPELLANT BY : SHRI LOKESH JAIN, C.A RESPONDENT BY : SHRI M.K BIJU, ADDL. CIT DATE OF HEARING : 04-09-2018 DATE OF PRONOUNCEMENT : 10-10-2018 O R D E R PER SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER : THIS APPEAL IS PREFERRED BY THE ASSESSEE AGA INST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) INTER ALIA ON THE FOLLOWING GROUNDS:- 1. THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ('CIT(A)') IS OPPOSED TO LAW, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE ORDER IS PASSED IN HASTE, WITHOUT PROVIDING SUFFICIENT AND REASONABLE OPPORTUNITY OF BEING HEARD. 3. THE ORDER IS PASSED AGAINST THE PRINCIPLE OF NAT URAL JUSTICE AND T*HUS LIABLE TO BE QUASHED. ITA NO.2371/B/18 2 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, LD. CIT(A) ERRED IN CONFIRMING THE ADDITION MADE BY THE LEARNED ASSESSING OFFICER ['LD. AO'] OF RS.6,20,407/- ON AC COUNT OF DIFFERENCE IN TURNOVER DECLARED IN SERVICE TAX RETU RN AND INCOME TAX RETURN. 5. THE LD. CIT(A) OUGHT TO HAVE CONSIDERED THE ADDI TIONALNCE PRODUCED BY THE APPELLANT DURING THE APPELLATE PROC EEDINGS, ALTHOUGH THE APPELLANT HAS FURNISHED SUFFICIENT REA SONS FOR NOT FURNISHING BEFORE LOWER AUTHORITIES 6. THE LD. CIT(A) FAILED TO EXERCISE DISCRETION VES TED IN HIM UNDER SUB RULE 4 OF RULE 46A TO ADMIT ADDITIONAL EV IDENCE. 7. THE LD. CIT(A) FAILED TO NOTE THAT THE APPELL ANT HAS EMPLOYED CASH SYSTEM OF ACCOUNTING CONSISTENTLY AND REGULARLY AS PER SECTION 145(1). 8. THE LD. CIT(A) FAILED TO APPRECIATE THE FACT THA T THE LD. AG HAS NOT ISSUED SHOW CAUSE NOTICE PROVIDING AN OPPORTUNITY TO THE APPELLANT TO SHOW CAUSE AS TO WH Y THE DIFFERENCE IN TURNOVER DECLARED IN SERVICE TAX RETU RN AND INCOME TAX RETURN BE TREATED AS INCOME. 9. THE ID. AO FAILED TO APPRECIATE THE FACT THAT TH E EXCESS SALE DECLARED IN THE SERVICE TAX RETURN WAS DUE TO ERROR IN FILING SERVICE TAX RETURN AND THE APPELLANT WAS UNABLE TO REVISE THE SERVICE TAX RETURN AS THE TIME TO REVISE THE RETURN HAD ELAPSED. THE LD. AG HAS CONSIDERED THE INCOME AS PE R SERVICE TAX RETURN WHICH IS NOT AS PER THE PROVISIO NS OF UNE SECTION 145(1). 10. THE LD. AO HAS ERRED IN NOT CONSIDERING THE CONFIRMATION FROM PARTIES WHICH IS VIOLATION OF PRI NCIPLE OF NATURAL JUSTICE AND BAD IN LAW. 2. THE LD COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION THAT AO HAS MADE AN ADDITION ON ACCOUNT OF DIFFERENCE IN TURNOVER AND D ECLARED IN SERVICE TAX RETURN AND INCOME-TAX RETURN. IT WAS CONTENDED ON BEHALF OF THE ASSESSEE THAT AO DID NOT AFFORD PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE TO EXPLAIN DISCREPANCIES FOUND THEREIN BUT HE HOWEVER FILED TH E DETAILED EVIDENCE BEFORE THE CIT(A) BUT IT WAS NOT CONSIDERED BY HIM AND HE CONF IRMED THE ADDITION. ITA NO.2371/B/18 3 3. IT WAS FURTHER SUBMITTED THAT IN THE INTERE ST OF NATURAL JUSTICE, THE ADDITIONAL EVIDENCED FILED CORRESPONDING TO THE DISCREPANCIES MAY BE ADMITTED AND THE MATTER MAY BE RESTORED TO THE FILE OF THE CIT(A) FO R FRESH ADJUDICATION. 4. THE LD DR PLACED RELIANCE UPON THE ORDER OF THE CIT(A). 5. HAVING CAREFULLY EXAMINED THE ORDERS O F THE LOWER AUTHORITIES, I FIND THAT PROPER OPPORTUNITY WAS NOT AFFORDED TO THE ASSESSEE TO EXPLAIN DISCREPANCIES FOUND IN SERVICE TAX AND INCOME-TAX RETURN. I ACCO RDINGLY SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER TO HIS FILE TO A DJUDICATE THE ASSESSMENT AFRESH IN THE LIGHT OF ADDITIONAL EVIDENCE FIELD BY HIM. AC CORDINGLY, APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH OCT, 2018 . SD/- (SUNIL KUMAR YADAV) JUDICIAL MEMBER BANGALORE DATED : 10/10/2018 VMS COPY TO : 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT CONCERNED. 4. THE CIT(A) CONCERNED 5. DR 6. GF BY ORDER ASST. REGISTRAR, ITAT, BANGALORE