Ms.Divya S Rao , Mysore V. The Income Tax Officer Ward-1(4), Mysore

ITA 2384/BANG/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3713 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 30-09-2020
• Assessment Year: 2008-2009
• Appeal Filed On: 14-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V SRINIVASAN SHRI S SUNDA
• Keywords: Opportunity of being heard; Initiation of penalty proceedings; Non compliance; Condonation of delay; Ignorance of law; Set aside; Capital Gains
• Section: 271E; 274; 143(2); 13; 147; 27; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI. B.R. BASKARAN, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER ITA NO.2384 TO 2387/BANG/2018 ASSESSMENT YEAR : 2008 09 MS. DIVYA S RAO, REP. BY GPA HOLDER SMT. BHARATHI, NO.723, 10 TH A CROSS, 2 ND STAGE, SIDDARTHA NAGAR, NAZARBAD MOHALLA, MYSURU. PAN AYPPD 4706 R VS. THE INCOME TAX OFFICER, WARD-1(4), MYSURU. APPELLANT RESPONDENT APPELLANT BY : SHRI V SRINIVASAN, ADVOCATE RESPONDENT BY : SHRI S SUNDAR RAJAN, ADDL. CIT (DR) DATE OF HEARING : 30-09-2020 DATE OF PRONOUNCEMENT : 06-11-2020 ORDER PER BEENA PILLAI, JUDICIAL MEMBER PRESENT APPEALS ARE FILED BY ASSESSEE AGAINST SEPAR ATE ORDERS DATED 21/06/2018 PASSED BY LD. CIT (A), MYSO RE IN QUANTUM PROCEEDING AND PENALTY PROCEEDING U/S 271(1 )(C), AND U/S 271(1)(B) AND 271E OF THE ACT FOR ASSESSMEN T YEAR 2008-09 PAGE 2 OF 13 ITA NO.2384 TO 2387/BANG/2018 ITA NO.2384/BANG/2018 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR A S THEY ARE AGAINST THE APPELLANT, ARE OPPOSED TO LAW, EQUITY, WEIGHT OF EV IDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED CIT[A] IS NOT JUSTIFIED IN HOLDING T HAT THE APPEAL FILED WAS BELATED BASED ON THE INFORMATION GIVEN BY THE [EARNED ITO, WARD - 1[4], MYSORE IN ITNS 51 THAT THE IMPUGN ED ORDER AND DEMAND NOTICE SERVED ON 01/09/2016 WITHOUT APPRECIA TING THAT THE APPELLANT WAS NOT AWARE OF THE ASSESSMENT PROCE EDINGS TAKEN UP BY THE DEPARTMENT BEING ABROAD AND HAD OBTAINED CERTIFIED COPY OF THE ASSESSMENT ORDER ON 01/05/2017 AND CERT IFIED COPY OF THE DEMAND NOTICE ON 15/05/2017 AND THEREUPON, THE APPELLANT HAD FILED THE APPEAL ON 13/06/2017, WHICH WAS WITHI N TIME OF 30 DAYS AND THUS THERE WAS NO DELAY IN FILING THE APPE AL AND HENCE, THERE IS NO REQUIREMENT FOR FILING ANY APPLICATION SEEKING CONDONATION OF DELAY UNDER THE FACTS AND IN THE CIR CUMSTANCES OF THE APPELLANT'S CASE. 3. THE LEARNED CIT[A] IS NOT JUSTIFIED IN HOLDING T HAT THE APPEAL FILED WAS NOT MAINTAINABLE BEING HIT BY THE PROVISI ONS OF SECTION 249[4][B] OF THE ACT AS THE APPELLANT HAD NOT PAID AMOUNT IN EQUIVALENT TO THE ADVANCE-TAX WITHOUT APPRECIATING THAT THE PROVISIONS OF SECTION 249[4B] OF THE ACT WERE WHOLL Y INAPPLICABLE SINCE THE APPELLANT HAD CHALLENGED THE VERY REOPENI NG OF THE ASSESSMENT AS WELT AS THE COMPUTATION OF THE CAPITA L GAINS IN THE APPEAL FILED BEFORE THE LEARNED CT[A] UNDER THE FAC TS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 4. THE LEARNED CIT[A] OUGHT TO HAVE APPRECIATED THA T THE ENTIRE ASSESSMENT PROCEEDINGS WERE COMPLETED U/S. 144 RWS 147 OF THE ACT WITHOUT SERVING ANY OF THE NOTICES ON THE APPEL LANT UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S C ASE AND CONSEQUENTLY THE IMPUGNED ORDER PASSED IS BAD IN LA W AND THE SAME REQUIRES TO BE ANNULLED. 5. THE ORDER OF RE-ASSESSMENT IS BAD IN LAW AND VOI D-AB-INITIO FOR WANT OF REQUISITE JURISDICTION ESPECIALLY, THE MAND ATORY REQUIREMENTS TO ASSUME JURISDICTION U/S 148 OF THE ACT DID NOT EXIST AND HAVE NOT BEEN COMPLIED WITH AND CONSEQUEN TLY, THE ORDER OF RE-ASSESSMENT REQUIRES TO BE CANCELLED. 6. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT[ A] IS NOT JUSTIFIED IN UPHOLDING THE COMPUTING A SUM OF RS.6, 55,000/- AS INCOME FROM SHORT TERM CAPITAL GAIN UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 7. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WI TH THE HON'BLE CCIT/DG, THE APPELLANT DENIES HERSELF LIABLE TO BE CHARGED TO INTEREST U/S.234-A, 234-B AND 234-C OF THE ACT, WHI CH UNDER THE PAGE 3 OF 13 ITA NO.2384 TO 2387/BANG/2018 FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S C ASE AND THE LEVY DESERVES TO BE CANCELLED. 8. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGE D AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRA YS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTING THE APPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITUTION FEES AS PART OF T HE COSTS. ITA NO.2385/BANG/2018 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR AS LEVYING PENALTY U/S 271[1][C] OF THE ACT AGAINST THE APPELLANT ARE OPPO SED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUM STANCES OF THE CASE. 2. THE LEARNED CIT[A] IS NOT JUSTIFIED IN HOLDING T HAT THE APPEAL FILED WAS BELATED BASED ON THE INFORMATION GIVEN BY THE LEARNED ITO, WARD - 1[4], MYSORE IN ITNS 51 THAT THE IMPUGN ED ORDER AND DEMAND NOTICE SERVED ON 01/09/2016 WITHOUT APPRECIA TING THAT THE APPELLANT WAS NOT AWARE OF THE ASSESSMENT PROCE EDINGS TAKEN UP BY THE DEPARTMENT BEING ABROAD AND HAD OBTAINED CERTIFIED COPY OF THE PENALTY ORDER ON 01/05/2017 AND CERTIFIED CO PY OF THE DEMAND NOTICE ON 15/05/2017 AND THEREUPON, THE APPE LLANT HAD FILED THE APPEAL ON 13/06/2017, WHICH WAS WITHIN TI ME OF 30 DAYS AND THUS THERE WAS NO DELAY IN FILING THE APPEAL AN D HENCE, THERE IS NO REQUIREMENT FOR FILING ANY APPLICATION SEEKING C ONDONATION OF DELAY UNDER THE FACTS AND IN THE CIRCUMSTANCES OF T HE APPELLANT'S CASE. 3. THE LEARNED CIT[A] IS NOT JUSTIFIED IN HOLDING T HAT THE APPEAL FILED WAS NOT MAINTAINABLE BEING HIT BY THE PROVISI ONS OF SECTION 249[4][B] OF THE ACT AS THE APPELLANT HAD NOT PAID AMOUNT IN EQUIVALENT TO THE ADVANCE-TAX WITHOUT APPRECIATING THAT THE PROVISIONS OF SECTION 249[4B] OF THE ACT WERE WHOLL Y INAPPLICABLE SINCE THE APPELLANT HAD CHALLENGED THE VERY REOPENI NG OF THE ASSESSMENT AS WELL AS THE COMPUTATION OF THE CAPITA L GAINS IN THE APPEAL FILED BEFORE THE LEARNED CT[A] UNDER THE FAC TS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 4. THE ORDER LEVYING PENALTY U/S.271[1][C] OF THE A CT, IS BAD IN LAW IN AS MUCH AS, THE LEARNED A 0 HAS NEITHER REACHED ANY SATISFACTION NOR HAS SUCH SATISFACTION BEEN RECORDE D IN THE ASSESSMENT ORDER AND CONSEQUENTLY, THE VERY INITIAT ION OF PROCEEDINGS U/S.271[1][C] OF THE ACT, IS NOT IN ACC ORDANCE WITH THE REQUIREMENTS OF SECTION 271[1] OF THE ACT AND CONSE QUENTLY, THE ORDER OF PENALTY FOUNDED ON THE INVALID INITIATION OF PENALTY PROCEEDINGS IS LIABLE TO BE CANCELLED 5. THE ORDER OF PENALTY PASSED U/S 271[1][C] OF THE ACT IS BAD IN LAW AS THE NOTICE ISSUED UNDER SECTION 274 RWS 271 OF THE ACT IS NOT DISCERNABLE WHETHER THE PENALTY PROCEEDINGS IS INITIATED FOR PAGE 4 OF 13 ITA NO.2384 TO 2387/BANG/2018 FURNISHING OF INACCURATE PARTICULARS OF INCOME OR C ONCEALMENT OF INCOME UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 6. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT[ A] IS NOT JUSTIFIED IN UPHOLDING THE PENALTY OF RS. 1,42,260/ - U/S 271[1][C] OF THE ACT UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANTS CASE. 6.1 THE LEARNED CIT[A] FAILED TO APPRECIATE THAT TH E APPELLANT HAS NEITHER CONCEALED ANY INCOME NOR FURNISHED INACCURA TE PARTICULARS OF INCOME TO WARRANT LEVY OF PENALTY AND THEREFORE, THE PENALTY LEVIED U/S.271[1][C] OF THE ACT REQUIRES TO BE CANC ELLED. 6.2 WITHOUT PREJUDICE TO THE ABOVE, THE PENALTY LEV IED IS HIGHLY EXCESSIVE AND LIABLE TO BE REDUCED SUBSTANTI ALLY. 7. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGE D AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRA YS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTING THE APPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITUTION FEES AS PART OF T HE COSTS. ITA NO.2386/BANG/2018 1. THE ORDERS OF THE AUTHORITIES BELOW IMPOSING PE NALTY U/S. 271[1][B] OF THE ACT IN SO FAR AS THEY ARE AGAINST THE APPELLANT ARE OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABI LITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED CIT[A] IS NOT JUSTIFIED IN HOLDING T HAT THE APPEAL FILED WAS BELATED BASED ON THE INFORMATION GIVEN BY THE LEARNED ITO, WARD - 1[4], MYSORE IN ITNS 51 THAT THE IMPUGN ED ORDER AND DEMAND NOTICE SERVED ON 01/09/2016 WITHOUT APPRECIA TING THAT THE APPELLANT WAS NOT AWARE OF THE ASSESSMENT PROCE EDINGS TAKEN UP BY THE DEPARTMENT BEING ABROAD AND HAD OBTAINED CERTIFIED COPY OF THE PENALTY ORDER ON 01 /05/2017 AND CERTIF IED COPY OF THE DEMAND NOTICE ON 15/05/2017 AND THEREUPON, THE APPE LLANT HAD FILED THE APPEAL ON 13/06/2017, WHICH WAS WITHIN TI ME OF 30 DAYS AND THUS THERE WAS NO DELAY IN FILING THE APPE AL AND HENCE, THERE IS NO REQUIREMENT FOR FILING ANY APPLICATION SEEKING CONDONATION OF DELAY UNDER THE FACTS AND IN THE CIR CUMSTANCES OF THE APPELLANT'S CASE. 3. THE LEARNED CIT[A] IS NOT JUSTIFIED IN HOLDING T HAT THE APPEAL FILED-WAS NOT MAINTAINABLE BEING HIT BY THE PROVISI ONS OF SECTION 249[4][B] OF THE ACT AS THE APPELLANT HAD NOT PAID AMOUNT IN EQUIVALENT TO THE ADVANCE-TAX WITHOUT APPRECIATING THAT THE PROVISIONS OF SECTION 249[4B] OF THE ACT WERE WHOLL Y INAPPLICABLE SINCE THE APPELLANT HAD CHALLENGED THE VERY REOPENI NG OF THE ASSESSMENT AS WELL AS THE COMPUTATION OF THE CAPITA L GAINS IN THE APPEAL FILED BEFORE THE LEARNED CT[A] UNDER THE FAC TS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. PAGE 5 OF 13 ITA NO.2384 TO 2387/BANG/2018 4. THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN LEVYI NG PENALTY U/S.271[1][B] OF THE ACT, UNDER THE FACTS AND IN THE CIRCUMSTANCE S OF THE APPELLANTS CASE. THEY FAILED TO APPRECIATE THAT THE APPELLANT HAD NO T COMMITTED ANY DEFAULT ACTIONABLE U/S.271[1][B] OF THE ACT AND CON SEQUENTLY, THE LEVY OF PENALTY DESERVES TO BE CANCELLED. 5. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT[ A] FAILED TO APPRECIATE THAT THE APPELLANT WAS PREVENTED BY REAS ONABLE CAUSE IN NOT COMPLYING WITH THE NOTICES AND CONSEQUENTLY, TH E PENALTY LEVIED DESERVES TO BE CANCELLED. 6. WITHOUT PREJUDICE TO THE ABOVE, THE PENALTY LEVI ED IS EXCESSIVE AND LIABLE TO BE REDUCED SUBSTANTIALLY. 7. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGE D AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLA NT MAY BE AWARDED COSTS IN PROSECUTING THE APPEAL AND ALSO OR DER FOR THE REFUND OF THE INSTITUTION FEES AS PART OF THE COSTS . ITA NO.2387/BANG/2018 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPELLANT ARE OPPOSED TO LAW, EQUITY, WEIGHT OF EVI DENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED CIT[A] IS NOT JUSTIFIED IN HOLDING T HAT THE APPEAL FILED WAS BELATED BASED ON THE INFORMATION GIVEN BY THE LEARNED ITO, WARD - 1[4], MYSORE IN ITNS 51 THAT THE IMPUGN ED ORDER AND DEMAND NOTICE SERVED ON 01/09/2016 WITHOUT APPRECIA TING THAT THE APPELLANT WAS NOT AWARE OF THE ASSESSMENT PROCEEDIN GS TAKEN UP BY THE DEPARTMENT BEING ABROAD AND HAD OBTAINED CER TIFIED COPY OF THE PENALTY ORDER ON 01/05/2017 AND CERTIFIED COPY OF THE DEMAND NOTICE ON 15/05/2017 AND THEREUPON, THE APPELLANT H AD FILED THE APPEAL ON 13/06/2017, WHICH WAS WITHIN TIME OF 30 D AYS AND THUS THERE WAS NO DELAY IN FILING THE APPEAL AND HENCE, THERE IS NO REQUIREMENT FOR FILING ANY APPLICATION SEEKING COND ONATION OF DELAY UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APP ELLANT'S CASE. 3. THE LEARNED CIT[A] IS NOT JUSTIFIED IN HOLDING T HAT THE APPEAL FILED WAS NOT MAINTAINABLE BEING HIT BY THE PROVISI ONS OF SECTION 249[4][B] OF THE ACT AS THE APPELLANT HAD NOT PAID AMOUNT IN EQUIVALENT TO THE ADVANCE-TAX WITHOUT APPRECIATING THAT THE PROVISIONS OF SECTION 249[4B] OF THE ACT WERE WHOLL Y INAPPLICABLE SINCE THE APPELLANT HAD CHALLENGED THE VERY REOPENI NG OF THE ASSESSMENT AS WELL AS THE COMPUTATION OF THE CAPITA L GAINS IN THE APPEAL FILED BEFORE THE LEARNED CT[A] UNDER THE FAC TS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 4. THE [EARNED CIT[A] IS NOT JUSTIFIED IN UPHOLDING THE PENALTY U/S.271F OF THE ACT, OF RS.5,000/- WITHOUT APPRECIA TING THAT THERE PAGE 6 OF 13 ITA NO.2384 TO 2387/BANG/2018 WAS NO REQUIREMENT FOR THE APPELLANT TO FILE A RETU RN OF INCOME FOR THE YEAR UNDER APPEAL AND THEREFORE THE PENALTY IMP OSED IS MISCONCEIVED. 4. WITHOUT PREJUDICE TO THE ABOVE, THE [EARNED CIT[ A] OUGHT TO HAVE APPRECIATED THAT THE APPELLANT WAS PREVENTED BY REA SONABLE CAUSE IN NOT FILING THE RETURN OF INCOME FOR THE YEAR UND ER APPEAL AND THEREFORE, NO PENALTY OUGHT TO HAVE BEEN LEVIED. 5. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGE D AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRA YS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTING THE APPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITUTION FEES AS PART OF THE COSTS . BRIEF FACTS OF THE CASE ARE AS UNDER: 2. ASSESSEE IS AN INDIVIDUAL AND THAT, SHE HAD ACQU IRED IMMOVABLE PROPERTY CONSISTING OF A SITE AT MEASURIN G 40 X 16 ON 29/04/2006 FOR A CONSIDERATION OF RS.1,20,00 0/-. IT HAS BEEN STATED THAT, ASSESSEE SOLD SAID IMMOVABLE PROPERTY ON 30/09/2017 FOR SALE CONSIDERATION OF RS.7,75,000 /-. 3. LD.AO NOTED THAT, ASSESSEE DID NOT FURNISH RETUR N OF INCOME WITHIN DUE DATE, FOR RELEVANT PERIOD DISCLOS ING, CAPITAL GAINS ARISING FROM SALE OF PROPERTY, AND TH EREFORE ISSUED NOTICE UNDER SECTION 148 OF THE ACT. IT HAS BEEN RECORDED BY LD.AO THAT, AS THE NOTICE WAS RETURNED UNSERVED, LD.AO SERVED THE NOTICE BY AFFIXING AT TH E LAST KNOWN ADDRESS OF ASSESSEE AS PER SALE DEED. LD.AO A LSO NOTED THAT, THERE WAS NO RESPONSE FROM ASSESSEE, AN D DUE OPPORTUNITY WAS GIVEN BY SERVING A PROPOSAL TO ASSE SS THE INCOME ESCAPING ASSESSMENT BY AFFIXTURE. LD.AO NOTE D THAT, AS THERE WAS NO RESPONSE TO THE PROPOSAL OF REASSES SMENT AS WELL, AND BEST JUDGMENT ASSESSMENT WAS MADE UNDER SECTION 144 READ WITH SECTION 147 OF THE ACT ON 29/ 02/2016 ASSESSING THE ESCAPED INCOME UNDER THE HEAD CAPITAL GAINS PAGE 7 OF 13 ITA NO.2384 TO 2387/BANG/2018 AT RS.6,55,000/-. LD.AO, SUBSEQUENTLY INITIATED PR OCEEDINGS U/S 271(1)(C), 271(1)(B) FOR NON COMPLIANCE OF NOTI CE, AND 271F FOR NOT FILING RETURN OF INCOME. 4. AGGRIEVED BY THE ADDITION, ASSESSEE PREFERRED AP PEAL BEFORE LD.CIT(A). ASSESSEE ALSO FILED APPEALS BEFOR E LD.CIT(A) AGAINST PENALTY ORDERS PASSED BY LD.AO DATED 31/08/ 2016 U/S 271(1)(C), 271(1)(B) AND 271F. REPRESENTATIVE OF ASSESSEE APPEARED BEFORE LD.CIT(A) AND FILED WRITTE N SUBMISSION DATED 12/06/2018. 5. BEFORE LD.CIT(A), ASSESSEE FILED APPEAL BELATED LY, AS THE IMPUGNED ORDERS AND NOTICE OF DEMAND WERE NOT B E COMMUNICATED TO ASSESSEE IN TIME DUE TO WRONG ADDRE SS. LD.CIT(A) NOTED THAT, ASSESSEE FAILED TO FILE RE TURN OF INCOME WITHIN DUE DATE, AND ALSO FAILED TO PAY ADV ANCE TAX WHICH WAS PAYABLE BY HER AS PER THE PROVISIONS OF S ECTION 249 (4) (B) OF THE ACT, BEFORE FILING OF APPEAL BE FORE FIRST APPELLATE AUTHORITY. LD. CIT(A) THEREFORE DID NOT A DMIT THE APPEALS AND DISMISSED IT. 6. AGGRIEVED BY ORDERS OF LD.CIT(A) ASSESSEE IS IN APPEAL BEFORE US. ASSESSEE HAS PREFERRED APPEALS AGAINST QUANTUM ORDER AS WELL AS PENALTY ORDERS. 7. BEFORE US, LD.AR SUBMITTED THAT, PRELIMINARY IS SUE CHALLENGED IS REGARDING VALIDITY OF RE-ASSESSMENT ORDER AND PENALTY ORDERS PASSED, WITHOUT FOLLOWING DUE PROCES S OF LAW. HE SUBMITTED THAT, THE REASSESSMENT ORDER AND PENAL TY ORDERS ARE BAD IN LAW, AS NO VALID NOTICE WAS SERV ED TO PAGE 8 OF 13 ITA NO.2384 TO 2387/BANG/2018 ASSESSEE INTIMATING ASSESSMENT AND PENALTY PROCEED INGS. LD.AR SUBMITTED IN WRITTEN SUBMISSION DATED 12/06/2 018 WHEREIN THE CORRECT ADDRESS OF ASSESSEE HAS BEEN ME NTIONED, WITH DETAILS OF SUPPORTING DOCUMENTS: 8. IT IS SUBMITTED BY LD.AR THAT NONE OF THE INCOME TAX DETAILS OF ASSESSEE REFERS TO THE ADDRESS BEING, NO . 387, SKANHA, 4 TH MAIN, TK LAYOUT, MYSORE. HE RELIED ON DOCUMENTS LIKE COPY OF ELECTION CARD, AND PASSPORT WHEREIN THE ADDRESS IS MENTIONED TO BE NO. 723, 10 TH CROSS, 2 ND STAGE, SIDDARTHANAGAR, NAZARBAD MOHALLA , MYSORE PL ACED IN PAPER BOOK. ASSESSEE HAS FILED BEFORE US THE COPY OF AADHAR CARD, HOWEVER THE ADDRESS MENTIONED THEREIN IS NOT READABLE HENCE WE ARE UNABLE TO ASCERTAIN THE SAME. IT HAS B EEN SUBMITTED BY LD.AR THAT, EVEN IN PAN CARD THE ADDRE SS MENTIONED IS 723, 10 TH CROSS, 2 ND STAGE, SIDDARTHANAGAR, NAZARBAD MOHALLA, MYSORE. HE THUS SUBMITTED THAT NO DETAILS WITH INCOME TAX DEPARTMENT FILED BY ASSESSE E MENTIONS THE ADDRESS, AT WHICH IMPUGNED NOTICE UNDE R SECTION 148 WAS ISSUED. HE SUBMITTED THAT EVEN THE ASSESSMENT ORDER MENTIONS WRONG ADDRESS AND THEREF ORE IT WAS NOT COMMUNICATED TO ASSESSEE IN TIME. 9. ON THE CONTRARY LD.SR.DR SUBMITTED THAT NOTICE U /S 147 WAS ISSUED BASED ON INFORMATION RECEIVED WHERE IN THE ADDRESS OF ASSESSEE WAS MENTIONED TO BE NO.387, SK ANHA 4 TH MAIN, T.K LAYOUT, MYSORE. HE ALSO SUBMITTED THAT ADMITTEDLY NO RETURNS WERE FILED BY ASSESSEE F OR RELEVANT PAGE 9 OF 13 ITA NO.2384 TO 2387/BANG/2018 ASSESSMENT YEAR DECLARING THE CAPITAL GAINS EARNED FROM SALE OF IMMOVABLE PROPERTY. HE PLACED RELIANCE ON THE INFORMATION RECEIVED BY LD.AO, FILED IN PAPER BOOK. FURTHER, LD.SR.DR ARGUED THAT ASSESSEE IN HER WRITTEN SUBMI SSION MENTIONS REGARDING SALE PROCEEDS, UTILISED FOR MEET ING HER HIGHER STUDIES COST OUTSIDE INDIA. HE THUS SUBMITTE D THAT PROVISIONS OF LAW HAVE NOT BEEN MET WITH BY ASSESSE E, ON SALE OF IMMOVABLE PROPERTY. HE SUBMITTED THAT EITHE R ASSESSEE SHOULD HAVE PAID TAXES ON THE SALES PROCEE DS RECEIVED DURING THE YEAR OR THE CAPITAL GAIN EARNE D SHOULD HAVE BEEN INVESTED AS PER PROVISIONS OF SEC.54 OF THE ACT. HE ALSO EMPHASISED THAT ASSESSEE HAS NOT FILED HER RET URNS OF INCOME FOR YEAR UNDER CONSIDERATION TILL DATE. HE SUBMITTED THAT INCOME HAS ESCAPED ASSESSMENT IN THE PRESENT CIRCUMSTANCES. HE SUPPORTED ORDERS PASSED BY AUT HORITIES BELOW AND SUBMITTED THAT IGNORANCE OF LAW CANNOT BE AN EXCUSE. HE SUBMITTED THAT THOUGH NOTICES ISSUED TO ASSESSEE WITH WRONG ADDRESS WAS NOT RECEIVED BY HER , BUT THE ASSESSMENT ORDER AND PENALTY ORDERS WERE RECEIV ED BELATEDLY, AGAINST WHICH ASSESSEE FILED APPEALS BEF ORE LD.CIT(A). IT HAS THUS BEEN SUBMITTED THAT THIS IS RECTIFIABLE UNDER SEC.292B OF THE ACT. 10. WE HAVE PERUSED SUBMISSIONS ADVANCED BY BOTH SI DES IN LIGHT OF RECORDS PLACED BEFORE US. PAGE 10 OF 13 ITA NO.2384 TO 2387/BANG/2018 11. GROUND NO.1, 2 & 8 ARE GENERAL IN NATURE. THER EFORE DOES NOT REQUIRE ADJUDICATION. 12. WE NOTE FROM THE DOCUMENTS PLACED BEFORE US THA T, THE NOTICE UNDER SECTION 148 WAS SERVED TO ASSESSEE AT, NO. 387, SKANHA, 4 TH MAIN, TK LAYOUT, MYSORE. WHEREAS, THE ADDRESS, WHERE ASSESSEE WAS RESIDING AS PER SUBMISS IONS REPRODUCED HEREIN ABOVE AT THE TIME OF SALE OF IM MOVABLE PROPERTY WAS, NO. 723, 10TH CROSS, 2 ND STAGE, SIDDHARTH NAGAR, NAZARABADMOHALLA, MYSORE. WE NOTE THAT, NOTI CE UNDER SECTION 148 WAS ISSUED BASED ON INFORMATION RECEIVED. IT IS A FACT THAT, LD. AO BEFORE ISSUING NOTICES DID NOT VERIFY WITH THE DETAILS THAT IS ALREADY AVAILAB LE WITH THE REVENUE LIKE ADDRESS MENTIONED ON PAN CARD ETC., FI LED BY ASSESSEE. LD.AO SHOULD HAVE VERIFIED THE DETAILS AV AILABLE WITH DEPARTMENT BEFORE ISSUING ANY NOTICE. UNDER S UCH CIRCUMSTANCES, IMPUGNED NOTICE UNDER SECTION 148 IS SUED AT WRONG ADDRESS CANNOT BE HELD TO BE VALID, AND THE ASSESSMENT ORDER PASSED CONSEQUENT TO SUCH NOTICE DESERVES TO BE QUASHED. 13. THE RE-ASSESSMENT ORDER DATED 29/2/2016, PASSED IS WITHOUT OFFERING PROPER OPPORTUNITY OF BEING HEARD TO ASSESSEE, WHICH IS NOT IN ACCORDANCE WITH LAW. WHIL E PASSING IMPUGNED REASSESSMENT ORDER, PRINCIPLE OF NATURAL J USTICE AND AUDI ALTERM PARTEM NEEDS TO BE FOLLOWED. WE THEREFORE QUASH IMPUGNED NOTICE ISSUED UNDER SECTION 148 DATE D PAGE 11 OF 13 ITA NO.2384 TO 2387/BANG/2018 28/04/2015 AT THE WRONG ADDRESS AND THE CONSEQUENTI AL ASSESSMENT ORDER PASSED IS SET ASIDE. ACCORDINGLY, WE ALLOW LEGAL ISSUE RAISED BY LD.AR I N GROUND NO. 4-5. 17. ISSUE RAISED BY ASSESSEE IN GROUND NO. 6 IS ON MERITS AS WE HAVE QUASHED THE BASIS OF SUCH ADDITION, THIS GROUND BECOMES ACADEMIC. GROUND NO.7 IS CONSEQUENTIAL TO ANY ADD ON MERITS, AS ADDITION ITSELF STAND AUTOMATICAL LY SET ASIDES. THIS ISSUE STANDS SET ASIDE. PENALTY APPEALS 18. CONSEQUENT TO ASSESSMENT ORDER DATED 29/2/2016, NOTICE U/S 274 OF THE ACT INITIATING PENALTY U/S 27 1(1)(C), 271(1)(B)/271E WERE ALSO ISSUED TO ASSESSEE AND SUBSEQUENTLY PENALTY ORDERS WERE ALSO PASSED. WE NOTE THAT ALL THESE PENALTY NOTICES AND CONSEQUENTIAL OR DERS WERE ISSUED AND PASSED WITH WRONG ADDRESS, WHICH CANNOT BE SUSTAINED. 19. WE ALSO NOTE THAT NOTICE U/S 271(1)(B) AND 271E ARE UNSUSTAINABLE IN THE EYES OF LAW AS ASSESSEE DID NO T RECEIVE ANY NOTICE U/S 148 AND CONSEQUENTIAL NOTICES BEING 143(2) AND 141(1) OF THE ACT WHICH WERE ISSUED BY LD.AO AT WRONG ADDRESS. THEREFORE, ASSESSEE COULD NOT FURNISH ANY RETURN OF INCOME IN RESPONSE. IN OUR VIEW, NOTICE U/S 271(1) (B) AND 271E ALSO DESERVES TO BE QUASHED AND SET ASIDE. 20. IN REGARD TO NOTICE U/S 271(1)(C), IS CONSEQUEN TIAL TO ASSESSMENT ORDER DATED 29/02/2016, WHICH WE HAVE AL READY PAGE 12 OF 13 ITA NO.2384 TO 2387/BANG/2018 HELD TO BE BAD IN LAW AS PASSED WITHOUT GRANTING PR OPER OPPORTUNITY OF BEING HEARD TO ASSESSEE. ACCORDINGL Y NOTICE ISSUED TO A WRONG ADDRESS AND CONSEQUENTIAL ORDERS PASSED BY LD.AO STANDS & QUASHED AND SET ASIDE AS BAD IN L AW. IN THE RESULT APPEALS FILED BY ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH NOV, 2020 SD/- SD/- (B.R BASKARAN) (BEENA PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE, DATED, THE 6 TH NOV, 2020. /VMS/ COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE PAGE 13 OF 13 ITA NO.2384 TO 2387/BANG/2018 DATE INITIAL 1. DRAFT DICTATED ON ON DRAGON SR.PS 2. DRAFT PLACED BEFORE AUTHOR -10-2020 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER -10-2020 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. -10-2020 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS -10-2020 SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON -10-2020 SR.PS 7. DATE OF UPLOADING THE ORDER ON WEBSITE -10-2020 SR.PS 8. IF NOT UPLOADED, FURNISH THE REASON -- SR.PS 9. FILE SENT TO THE BENCH CLERK -10-2020 SR.PS 10. DATE ON WHICH FILE GOES TO THE AR 11. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 12. DATE OF DISPATCH OF ORDER. 13. DRAFT DICTATION SHEETS ARE ATTACHED NO SR.PS