Smt. Sarasa Prahlad, Bengaluru V. Income Tax Officer, Ward- 6(3), Bangalore

ITA 2386/BANG/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0114 (ITAT-BANGALORE)
• Duration Of Justice: 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 22-06-2020
• Assessment Year: 2014-2015
• Appeal Filed On: 19-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: TSHERING ONGDU CIT BENGALURU
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 143(3); 250; 22; 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE , JUDICIAL MEMBER ITA NO. 2386 / BANG /201 9 ASSESSMENT YEAR : 20 1 4 - 1 5 SMT. SARASA PRAHLAD, WIFE & L/R OF LATE SHRI. NARASIMHA MURTHY PRAHLAD, BLOCK-F2, NO.105, SRIRAMSHREYAS APTS., TELECOM COLONY, THINDLU MAIN ROAD, KODIGEHALLI, BANGALORE 560 097. PAN : ACXPP 4205 D VS. THE INCOME TAX OFFICER, WARD 6(3), BENGALURU. APPELLANT RESPONDENT ASSESSEE BY : SHRI. RAVISHANKAR, ADVOCATE REVENUE BY : SHRI. TSHERING ONGDU , ADDL. CIT (DR)(ITAT), BENGALURU DATE OF HEARING : 22 . 06 .20 20 DATE OF PRONOUNCEMENT : 26 . 06 .20 20 O R D E R PER A. K. GARODIA, AM: THIS APPEAL IS FILED BY THE ASSESSEE AND THE SAME IS DIRECTED AGAINST EX- PARTE ORDER OF LEARNED CIT(A) - 13, BENGALURU, DATED 18.09.2019, FOR THE ASSESSMENT YEAR 2014-15. THE GROUND RAISED BY THE ASSESSEE IN THIS APPEAL ARE AS UNDER:- 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-13, BENGALURU, PASSED UNDER SECTION 250 OF THE ACT IN SO FAR AS IT IS AGAINST THE APPELLANT IS OPPOSED TO LAW, WEIGHT OF EVIDENCE, NATURAL JUSTICE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE. 2. THE APPELLANT DENIES HERSELF TO BE LIABLE TO BE ASSESSED TO TOTAL INCOME OF RS.53,08,943/- AS AGAINST THE RETURNED LOSS OF RS. 7,94,277/- ON THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO.2386/BANG/2019 PAGE 2 OF 4 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN LAW AND ON FACTS, IN NOT AFFORDING SUFFICIENT OPPORTUNITY OF HEARING AND CONSEQUENTLY PASSED THE ORDER IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN APPRECIATING THAT THE ORDER UNDER SECTION 143(3) R.W.S 263 OF THE ACT, WAS PASSED WITHOUT AFFORDING SUFFICIENT OPPORTUNITY OF HEARING AND CONSEQUENTLY PASSED THE ORDER IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND WAS REQUIRED TO BE SET ASIDE AS BAD IN LAW, ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN LAW IN APPRECIATING THAT THE INVOKING OF SECTION 35DDA OF THE ACT WAS BAD IN LAW AND RESTRICTING THE ALLOWANCE TO 1/5TH OF RS. 75,42,610/-, BEING RS. 15,08,522/- WAS BAD IN LAW AND ON FACTS ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS NOT JUSTIFIED IN LAW IN NOT APPRECIATING THAT THE SUM CLAIMED BY THE APPELLANT WAS ALLOWABLE UNDER SECTION 37 OF THE ACT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 7. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS NOT JUSTIFIED IN LAW AND FACTS IN APPRECIATING THAT THE DISALLOWANCE CONSIDERED BY THE AO OF A SUM OF RS. 69,132 EXPENDED TOWARDS THE CESS AND OUGHT TO HAVE DELETED THE SAME, ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 8. WITHOUT PREJUDICE, THE AUTHORITIES BELOW ERRED IN LAW IN NOT ALLOWING THE SUM CLAIMED BY THE APPELLANT IN VIEW OF THE PERMANENT CLOSURE OF BUSINESS SUBSEQUENT YEARS ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 9. THE APPELLANT DENIES HERSELF LIABLE TO THE INTEREST UNDER SECTION 234A AND 234C OF THE ACT AMOUNTING TO RS. 34,914/- AND RS. 12,57,642/- RESPECTIVELY ON THE FACTS AND CIRCUMSTANCES OF THE CASE. WITHOUT PREJUDICE THE CALCULATION OF THE INTEREST WAS HELD NOT TO BE CORRECT AS THE RATE, INTEREST, PERIOD AMOUNT ON WHICH THE INTEREST HAS BEEN LEVIED ARE NOT DISCERNABLE FROM THE IMPUGNED ORDER ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 10. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, SUBSTITUTE, CHANGE AND DELETE ANY OF THE GROUNDS OF APPEAL. 2. AT THE VERY OUTSET, THE BENCH POINTED OUT THAT THE IMPUGNED ORDER OF LEARNED CIT (A) IS EX-PARE QUA THE ASSESSEE. THE BENCH ALSO POINTED THAT THAT ITA NO.2386/BANG/2019 PAGE 3 OF 4 AS NOTED BY THE LEARNED CIT(A) IN PARA 4 OF HIS ORDER, SEVERAL DATES OF HEARING WAS FIXED BY HIM BUT THERE WAS NO RESPONSE FROM THE ASSESSEE BEFORE THE CIT(A) EXCEPT FILING ONE ADJOURNMENT LETTER DATED 09.08.2017 IN RESPONSE TO THE HEARING NOTICE DATED 24.07.2017. IN REPLY, IT WAS SUBMITTED BY LEARNED AR OF THE ASSESSEE THAT IT IS TRUE THAT FOR VARIOUS REASONS, THE ASSESSEE COULD NOT MAKE PROPER COMPLIANCE BEFORE LEARNED CIT(A) BUT LEARNED CIT(A) HAS DISMISSED THE APPEAL WITHOUT DECIDING THE ISSUE ON MERIT AND THEREFORE, THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF CIT(A) FOR A DECISION ON MERIT. LEARNED DR OF THE REVENUE SUBMITTED THAT THERE IS NO RESPONSE OF THE ASSESSEE IN SPITE OF SEVERAL NOTICES OF HEARING ISSUED BY LEARNED CIT(A) AND THEREFORE, THE ORDER OF LEARNED CIT(A) SHOULD BE CONFIRMED. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT IT IS TRUE THAT ABOUT EIGHT LETTERS WERE ISSUED BY LEARNED CIT(A) FIXING DATES OF HEARING OF THE APPEAL AND IN REPLY TO ONE NOTICE DATED 24.07.2017, THE ASSESSEE HAS FILED ONE ADJOURNMENT LETTER DATED 09.08.2017 BUT THERE IS NO COMPLIANCE OR RESPONSE OF THE OTHER NOTICES. BUT STILL, LEARNED CIT(A) SHOULD HAVE DECIDED THE ISSUE ON MERIT AS PER THE MATERIAL AVAILABLE ON RECORD AND SINCE THIS WAS NOT DONE BY LEARNED CIT(A), WE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR A FRESH DECISION ON MERIT, AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. IN VIEW OF THIS DECISION, WE MAKE NO COMMENT ON MERIT. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- SD/- (PAVAN KUMAR GADALE) (A.K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE. DATED: 26 TH JUNE, 2020. /NS/* ITA NO.2386/BANG/2019 PAGE 4 OF 4 COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.