Smt. Malathi, Bengaluru V. Income Tax officer, ward-6(3)(1), Bengaluru

ITA 2536/BANG/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1127 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 30-07-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 06-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIKAS SURYAVAMSHI
• Keywords: Opportunity of being heard; Principle of natural justice; Period of limitation; Time period of passing order; Condonation of delay; Capital Gains
• Section: 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER I TA NO. 2 53 6 /BANG/2018 ASSESSMENT YEAR : 20 1 3 - 1 4 SMT. MALATHI, NO. 13, 4 TH MAIN ROAD, HEBBAL, BANGALORE 560 024. PAN: AHLPM6037D VS. THE INCOME-TAX OFFICER, WARD 6 [3] [1], BANGALORE. APPELLANT RESPONDENT ASSESSEE BY : SHRI NARENDRA SHARMA, ADVOCATE REVENUE BY : SHRI VIKAS SURYAVAMSHI, ADDL. CIT (DR) DATE OF HEARING : 3 0 .0 7 .2019 DATE OF PRONOUNCEMENT : 13 .0 9 .2019 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE AND THE SAME IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-6, BANGALORE DATED 09.02.2018 FOR ASSESSMENT YEAR 2013-14. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS]-6, BENGALURU DATED 09/02/2018, IN SO FAR AS IT IS AGAINST THE APPELLANT, IS OPPOSED TO THE LAW, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES IN THE APPELLANT'S CASE. 2. THE APPELLANT DENIES HERSELF LIABLE TO BE TAXED ON A TOTAL INCOME ASSESSED BY THE LEARNED ASSESSING OFFICER AND CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] AMOUNTING TO RS. 88,12,040/- AS AGAINST THE TOTAL INCOME REPORTED BY THE APPELLANT OF RS. 4,89,640/-, ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE. 3. THE EX-PARTE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME- TAX [APPEALS] IS BAD IN LAW AS THE APPELLANT WAS NOT AFFORDED A REASONABLE OPPORTUNITY OF HEARING, WHICH IS IN GRAVE VIOLATION OF PRINCIPLES OF NATURAL JUSTICE ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE. ITA NO. 2536/BANG/2018 PAGE 2 OF 4 4. THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] IS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF CAPITAL GAINS MADE BY THE LEARNED ASSESSING OFFICER AMOUNTING TO RS. 83,22,395/-, ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE. 5. THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] HAS NOT CONSIDERED THE SUBMISSIONS MADE BY THE APPELLANT ALONG WITH SUPPORTING DOCUMENTS FILED BY THE APPELLANT ON 13/10/2017, AND WITHOUT CONSIDERING AND EXAMINING THE SUBMISSIONS AND THE DOCUMENTS FILED ARBITRARILY PASSED A EXPARTE ORDER WHICH IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE, ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE. 6. THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] IS NOT JUSTIFIED IN CONFIRMING THE ORDER OF THE LEARNED ASSESSING OFFICER WHO HAD DENIED THE APPELLANT THE ELIGIBLE CLAIM OF EXEMPTION UNDER THE PROVISIONS OF SECTION 54F OF THE ACT AMOUNTING TO RS,88,22,395/-, ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE. 7. THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] ERRED IN CONFIRMING THE ERRONEOUS FINDING OF THE LEARNED ASSESSING OFFICER WHEREIN IT WAS HELD THAT THE APPELLANT BY ENTERING INTO JDA HAS NOT ACQUIRED THE NEW RESIDENTIAL PROPERTY WHICH IS CONTRARY TO THE ADMITTED FACTS AND LAW AND CONSEQUENTLY PASSED A PERVERSE ORDER, ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE. 8. THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] FAILED TO APPRECIATE THAT THE LEARNED ASSESSING OFFICER IS NOT JUSTIFIED IN OVERLOOKING THE PAYMENTS MADE BY THE APPELLANT TO HER HUSBAND I.E. DR. CHIKKALINGAIAH, FOR THE PURPOSES OF ACQUISITION OF FLATS THAT WERE BEING CONSTRUCTED, ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE. 9. THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] AS WELL THE LEARNED ASSESSING OFFICER FAILED TO APPRECIATE THAT AS PER THE SCHEME OF THE ACT THE APPELLANT IS ENTITLED FOR THE BENEFIT OF CLAIM OF EXEMPTION UNDER THE PROVISIONS OF SECTION 54F OF THE ACT AND OUGHT TO HAVE APPRECIATED THE FACTS AND THE CORRESPONDING EVIDENCES AND ALLOWED THE CLAIM OF BENEFICIAL EXEMPTION UNDER SECTION 54F OF THE ACT TO THE APPELLANT, ON THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE. 10. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER AS PER THE PARITY OF REASONING OF THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF KARANVIR SINGH 349 ITR 692, THE APPELLANT DENIES HERSELF LIABLE TO BE CHARGED TO INTEREST UNDER SECTION 234 B OF THE INCOME TAX ACT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. FURTHER THE LEVY OF INTEREST UNDER SECTIONS 234 A, 234 B ET 234 C OF THE ACT IS ALSO BAD IN LAW AS THE PERIOD, RATE, QUANTUM AND METHOD OF CALCULATION ADOPTED ON WHICH INTEREST IS LEVIED ARE ALL NOT DISCERNIBLE AND ARE WRONG ON THE FACTS OF THE CASE. ITA NO. 2536/BANG/2018 PAGE 3 OF 4 11. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, SUBSTITUTE AND DELETE ANY OR ALL THE GROUNDS OF APPEAL URGED ABOVE. 12. FOR THE ABOVE AND OTHER GROUNDS TO BE URGED DURING THE HEARING OF THE APPEAL, THE APPELLANT PRAYS THAT THE APPEAL BE ALLOWED IN THE INTEREST OF EQUITY AND JUSTICE. 3. THIS APPEAL WAS FILED BY THE ASSESSEE AFTER A DELAY OF 51 DAYS. THE ASSESSEE HAS MOVED AN APPLICATION FOR CONDONATION OF DELAY ALONG WITH AN AFFIDAVIT IN WHICH IT IS STATED THAT ON THE RECEIPT OF THE ORDER OF LD. CIT(A), THE MATTER WAS REFERRED TO LD. AR OF ASSESSEE AND HE WAS TO SUGGEST THE ASSESSEE REGARDING THE NEXT COURSE OF REMEDY AVAILABLE AS AGAINST THE EX-PARTE ORDER. HE ASKED THE ASSESSEE TO CONTACT AFTER THREE WEEKS TO SUGGEST THE NEXT COURSE OF ACTION ON THE IMPUGNED ORDER OF LD. CIT(A). IT IS ALSO SUBMITTED THAT ASSESSEE CONTACTED THE SAID LD. AR OF ASSESSEE AFTER THREE WEEKS BUT NO ADVICE WAS GIVEN AND HE SOUGHT FURTHER TIME AND THE ASSESSEE WAS NOT AWARE OF THE LIMITATION PERIOD FOR PREFERRING AN APPEAL BEFORE THE TRIBUNAL AND THE SAID LD. AR OF ASSESSEE DID NOT GUIDE THE ASSESSEE PROPERLY AND SUBSEQUENTLY, THE ASSESSEE MET ANOTHER COUNSEL IN A SOCIAL GATHERING AND IN COURSE OF THAT MEETING, HE SUGGESTED TO IMMEDIATELY FILE APPEAL BEFORE TRIBUNAL WITH A REQUEST FOR CONDONATION OF DELAY AND THEREAFTER, THE ASSESSEE FILED THE APPEAL. IT IS SUBMITTED THAT UNDER THESE FACTS, THE DELAY SHOULD BE CONDONED. THE LD. DR OF REVENUE OPPOSED THE CONDONATION OF DELAY BUT CONSIDERING THE FACTS OF PRESENT CASE AND IN THE INTEREST OF JUSTICE, WE CONDONE THE DELAY. 4. IT WAS SUBMITTED BY LD. AR OF ASSESSEE BEFORE US THAT THE PAPER BOOK CONTAINING PAGES 1 TO 120 WAS FILED BEFORE LD. CIT(A) ON 13.10.2017 BUT THE SAME WAS NOT CONSIDERED BY HIM WHILE DECIDING THE ASSESSEES APPEAL AND HENCE, IN THE INTEREST OF JUSTICE, THE MATTER MAY BE RESTORED BACK TO THE FILE OF LD. CIT(A) FOR FRESH DECISION AFTER CONSIDERING THE PAPER BOOK FILED BY THE ASSESSEE AND AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. HE SUBMITTED THAT IF MATTER IS RESTORED BACK, THE ASSESSEE WILL MAKE PROPER COMPLIANCE BEFORE LD. CIT(A). THE LD. DR OF REVENUE SUPPORTED THE ORDER OF LD. CIT(A). ITA NO. 2536/BANG/2018 PAGE 4 OF 4 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND IN THE FACTS OF PRESENT CASE DISCUSSED ABOVE, WE FEEL IT PROPER TO RESTORE THE ENTIRE MATTER BACK TO THE FILE OF LD. CIT(A) FOR FRESH DECISION. WE ORDER ACCORDINGLY. IN VIEW OF THIS DECISION, NO ADJUDICATION ON MERIT IS CALLED FOR AT THE PRESENT STAGE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- (PAVAN KUMAR GADALE) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 13 TH SEPTEMBER, 2019. /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.