Bhoruka Aluminium Ltd , Mysore V. Assistant Commissioner of Income Tax Circle-1(1), Mysore

ITA 2406/BANG/2018

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 0779 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 20-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-A BENCH, BANGALORE BEFORE SHRI. SUNIL KUMAR YADAV, JUDICIAL MEMBER ITA NO. 2406/BANG/2018 ASSESSMENT YEAR : 2015 - 16 M/S. BHORUKA ALUMINUM LTD., 427-E, 2 ND FLOOR, HEBBAL INDUSTRIAL AREA, MYSORE 570 016. PAN: A AACB 8073 D VS. THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE -1(1), MYSORE. APPELLANT RESPONDENT ASSESSEE BY : SHRI. SANDEEP C , CA REVENUE BY : SHRI. M. K. BIJU, ADDL. CIT DATE OF HEARING : 05 /0 9 /201 8 DATE OF PRONOUNCEMENT : 05 / 10 /201 8 O R D E R PER SUNIL KUMAR YADAV, JM : THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A), INTER ALIA, ON FOLLOWING GROUNDS: 1. THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS PREJUDICIAL TO THE INTERESTS OF THE APPELLANT, IS BAD AND ERRONEOUS IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) ERRED IN LAW AND ON FACTS IN REFUSING TO ADMIT THE APPEAL ON THE GROUND THAT THE CONDITION LAID DOWN IN SECTION 249(4)(A) IS NOT SATISFIED EVEN THOUGH NO TAX LIABILITY ARISES AS PER THE RETURNED INCOME. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) ERRED IN LAW AND ON FACTS IN REFUSING TO ADMIT THE APPEAL ON THE GROUND THAT THE APPEAL WAS FILED BEYOND THE TIME LIMIT. 4. THAT THE LOWER AUTHORITIES OUGHT TO HAVE CONSIDERED THE MAT CREDIT TO THE EXTENT OF RS. 6,59,422/- AND SETOFF AGAINST THE TAX LIABILITY FOR THE AY 2015-16. ITA NO. 2406/BANG/2018 PAGE 2 OF 3 5. THE LOWER AUTHORITIES ERRED IN LAW AND ON FACTS IN CONSIDERING THE SAME INCOME OF RS. 4,38,20,000/- FOR BOTH THE ASSESSMENT YEAR 2014-15 & 2015-16. EACH OF THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO ONE ANOTHER, THE APPELLANT SEEKS THE LEAVE OF THE HON'BLE INCOME TAX APPELLATE TRIBUNAL TO ADD, DELETE, AMEND OR MODIFY OTHERWISE EACH OR ANY OF THE GROUNDS EITHER BEFORE OR AT THE TIME OF FILING THE APPEAL. 2. DURING THE COURSE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE HAS INVITED MY ATTENTION TO THE ORDER OF THE CIT(A) WITH THE SUBMISSION THAT THERE WAS DELAY OF 4 DAYS IN FILING OF THE APPEAL WHICH HE TRIED TO EXPLAIN BUT THE CIT(A) DID NOT APPRECIATE AND DID NOT CONDONE THE DELAY AND DISMISSED THE APPEAL BEING BARRED BY LIMITATION. BESIDES, ON MERIT, THE LEARNED CIT(A) HAS OBSERVED THAT ASSESSEE HAS NOT PAID THE ADMITTED TAX THEREFORE THE CONDITION PRESCRIBED UNDER SECTION 249(4)(A) OF THE ACT WAS NOT COMPLIED WITH. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER CONTENDED THAT ASSESSEE HAS PAID THE ADMITTED TAX ON THE RETURNED INCOME, BUT THE CIT(A) DID NOT EXAMINE THESE ASPECTS AND CONCLUDED THAT ASSESSEE HAS NOT PAID THE ADMITTED TAX ON THE RETURNED INCOME. IN SUPPORT OF HIS CONTENTION, HE HAS PLACED RELIANCE UPON THE RETURN FILED. COPY IS PLACED ON RECORD. 3. THE LEARNED DR PLACED RELIANCE UPON THE ORDER OF THE CIT(A). 4. I HAVE CAREFULLY EXAMINED THE ORDER OF THE CIT(A) AND I FIND THAT THERE WAS DELAY OF ONLY 4 DAYS IN FILING OF APPEAL BEFORE THE CIT(A), WHICH WAS DULY EXPLAINED AND SHOULD HAVE BEEN CONDONED BY THE CIT(A). IT IS ALSO NOTICED THAT THOUGH THE ASSESSEE HAS RAISED A PLEA BEFORE CIT(A) THAT HE HAS PAID THE ADMITTED TAX ON THE RETURNED INCOME BUT THIS ASPECT WAS NEVER EXAMINED BY THE CIT(A). THEREFORE, I CONDONE THE DELAY IN FILING OF APPEAL AND SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH THE DIRECTION TO ADJUDICATE THE GROUNDS ITA NO. 2406/BANG/2018 PAGE 3 OF 3 RAISED BEFORE HIM IN THE LIGHT OF ASSESSEES CONTENTIONS WITH REGARD TO PAYMENT OF ADMITTED TAX ON RETURNED INCOME. ACCORDINGLY, ORDER OF THE CIT(A) IS SET ASIDE AND MATTER IS RESTORED TO HIS FILE TO ADJUDICATE THE GROUNDS RAISED BEFORE IT AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 5 TH SEPTEMBER, 2018. SD/ - SD/- (A. K. GARODIA ) (SUNIL KUMAR Y ADAV ) ACCOUNTANT M EMBER JUDICIAL MEMBER PLACE : BANGALORE DATED : 05/10/2018 /NS/* COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 . DR 6 GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME-TAX APPELLATE TRIB UNAL BANGALORE