Mysore Dutta Polymers Pvt Ltd , Mysore V. Assistant Commissioner of Income Tax CPC , Bangalore

ITA 2403/BANG/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 5086 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2015-2016
• Appeal Filed On: 20-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S. LOKNATH
• Keywords: Principle of natural justice; Set aside
• Section: 143(1); 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-C BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 240 3 /BANG/201 8 ASSESSMENT YEAR : 20 1 5 - 1 6 M/S. MYSORE DUTTA POLYMERS PVT. LTD., 228, PREMIER STUDIO, JAYALAKSHMIPURAM, MYSORE 570 012. PAN: AABCM1422A VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CPC, BANGALORE. APPELLANT RESPONDENT ASSESSEE BY : SHRI S. LOKNATH, CA REVENUE BY : DR. S. PALANI KUMAR, ADDL. CIT (DR) DATE OF HEARING : 15 . 10 .2018 DATE OF PRONOUNCEMENT : 17 . 10 .2018 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE AND THE SAME I S DIRECTED AGAINST THE ORDER OF LD. CIT(A), MYSORE DATED 22.06.2018 FOR AS SESSMENT YEAR 2015-16. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE APPELLANT SUBMITS THAT THE DEMAND IS RAISED AS NON PAYMENT OF DIVIDEND TAX WITH IN THE STIPULATED TIME. 2. THE APPELLANT SUBMITS THAT THE DIVIDEND WAS DECL ARED ON 30TH SEPTEMBER AND SINCE THE AMOUNT OF ADVANCE TAX AND T DS WERE SUBSTANTIAL TO COVER THE TAX ON THE REGULAR INCOME AND THE DIVIDEND TAX NO ADDITIONAL AMOUNT WAS PAID. 3. THE ASSESSMENT ORDER WAS SERVED DEMANDING THE IN TEREST ON DELAY IN PAYMENT OF DIVIDEND TAX. 4. THE APPEAL MEMORANDUM FILED BEFORE THE COMMISSIO NER (APPEALS) HAD ACCOMPANIED THE ASSESSMENT ORDER BY CPC. WHERE NO DEMAND NOTE WAS ENCLOSED. 5. THE APELLANT SUBMITS THAT THE ASSESSMENT ORDER I TSELF HAS A NOTE BEARING NO.3 STATING .'IN CASE OF DEMAND, THIS INTI MATION MAY BE TREATED AS NOTICE OF DEMAND U/S 156 OF THE INCOME T AX ACT,1961. ACCORDINGLY, YOU ARE REQUESTED TO PAY 6. THE APPELLANT SUBMITS THAT THE LD, COMMISSIONER (APPEALS) HAS NOT SEEN THE ASSESSMENT ORDER AND HAS NOT READ THE NOTE WHEREBY HAS ASKED TO FURNISH THE DEMAND NOTE U/S 156 OF THE ACT OR ASKED TO FILE AN AFFIDAVIT THAT THE SAME IS NOT RECEIVED. 7. THE ORDER PASSED BY THE APPELLATE AUTHORITY SINC E HAS NOT LOOKED INTO THE DETAIL NOTE IN THE ASSESSMENT ORDER , AS A RESULT CITING THE CIRCULAR AND DISMISSING THE APPEAL IS NOT IN ACCORD ANCE TO THE ITA NO.2403/BANG/2018 PAGE 2 OF 3 PROVISIONS OF THE ACT AND HENCE IS LIABLE FOR SETTI NG ASIDE IN THE INTEREST OF EQUITY AND JUSTICE. 8. THE APPELLANT SUBMITS THAT THE APPEAL WAS FILED FOR DELETING THE INTEREST CHARGED FOR THE LATE PAYMENT OF THE DIVIDE ND TAX , WHEREAS THE ASSESSMENT ORDER SHOWS AN ADJUSTMENT OF THE REFUND AGAINST THE DEMAND OF THE SAID INTEREST, THEREBY THE ORDER ITSE LF IS CONTRADICTORY. 9. THE APPELLANT SUBMITS THAT ONCE THE DEMAND IS AD JUSTED THE QUESTION OF INTEREST DOES NOT ARISE AND HENCE THE O RDER PASSED U/S 143(1) ITSELF IS ERRONEOUS AND REQUIRES TO BE SET A SIDE. 10. THE APPELLANT SUBMITS THAT THE SIMILAR ISSUE FO R THE ASST YEAR 2010-11 WAS REMANDED FOR GIVING AN OPPORTUNITY TO E XPLAIN THE DETAILS. THE DEMAND NOTICE WAS NOT FURNISHED ON THA T APPEAL ALSO AS THE SAME NOTE WAS SHOWN AT THE TIME OF HEARING. 11. WITHOUT PREJUDICE TO ABOVE, IT IS FURTHER SUBMI TTED THAT ANY ADDITION MADE IN THE INCOME OR NOT CONSIDERED THE P AYMENT IS REQUIRED TO BE INTIMATED BY NOTICE SO THAT CAN BE E XPLAINED, ON THAT GROUND ALSO IT AMOUNTS TO VIOLATION OF PRINCIPLE OF NATURAL JUSTICE AND REQUIRES TO BE SET ASIDE. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR O F ASSESSEE THAT THE ORDER PASSED BY CIT(A) IS EX-PARTE QUA THE ASSESSEE. HE FURTHER SUBMITTED THAT EVEN IN THIS EX-PARTE ORDER, LD. CIT(A) HAS DISMISS ED THE APPEAL OF THE ASSESSEE ON THIS BASIS THAT THE APPEAL IS DEFECTIVE BECAUSE THE ASSESSEE HAS NOT FILED ORIGINAL NOTICE OF DEMAND ISSUED U/S. 156 OF IT ACT OR A CERTIFIED COPY THEREOF. HE SUBMITTED A COPY OF INTIMATION RE CEIVED FROM DCIT, CPC DATED 06.12.2016 AND POINTED OUT THAT IN THIS INTIM ATION, IT HAS BEEN STATED THAT THIS INTIMATION MAY BE TREATED AS NOTICE OF DE MAND U/S. 156 OF IT ACT AND ASSESSEE WAS REQUESTED TO PAY THE ENTIRE DEMAND WITHIN 30 DAYS FROM RECEIPT OF THIS INTIMATION. HE SUBMITTED THAT THIS INTIMATION RECEIVED FROM DCIT, CPC WAS SUBMITTED BEFORE LD. CIT(A) ALONG WIT H FORM NO. 35 AND HENCE, THIS IS NOT CORRECT TO SAY THAT THE ASSESSEE HAS NOT SUBMITTED THE COPY OF DEMAND NOTICE ALONG WITH FORM NO. 35 FILED BEFORE CIT(A). HE SUBMITTED THAT THE MATTER SHOULD BE RESTORED BACK T O THE FILE OF CIT(A) FOR FRESH DECISION. THE LD. DR OF REVENUE SUPPORTED TH E ORDER OF CIT(A). 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I ALSO FIND THAT AS PER THE IMPUGNED ORDER, LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE AS DEFECTIVE AND WITHOUT ADMITTING THE SAME. THE REAS ON GIVEN BY LD. CIT(A) FOR SAYING THAT THE APPEAL IS DEFECTIVE IS THIS THA T THE ASSESSEE HAS NOT FURNISHED EITHER THE ORIGINAL NOTICE OF DEMAND ISSU ED U/S. 156 OF IT ACT OR A CERTIFIED COPY THEREOF ALONG WITH FORM NO. 35 FILED BEFORE HIM. AS PER THE ITA NO.2403/BANG/2018 PAGE 3 OF 3 INTIMATION COPY DATED 06.12.2016 FILED BEFORE THE T RIBUNAL, IT HAS BEEN STATED THAT THIS INTIMATION MAY BE TREATED AS NOTIC E OF DEMAND U/S. 156 OF IT ACT. HENCE I FEEL IT PROPER TO RESTORE BACK THIS M ATTER TO THE FILE OF CIT(A) FOR A DECISION ON MERIT AFTER ADMITTING THE APPEAL OF T HE ASSESSEE BECAUSE AT LEAST NOW, THE NOTICE OF DEMAND U/S. 156 OF IT ACT IS MADE AVAILABLE. HENCE, THE ORDER OF CIT(A) IS SET ASIDE AND THE MAT TER IS RESTORED BACK TO THE FILE OF CIT(A) FOR DECISION ON MERIT. IN VIEW OF THIS DECISION, NO ADJUDICATION IS CALLED FOR REGARDING THE MERIT OF T HE CASE AT THE PRESENT STAGE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 17 TH OCTOBER, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.