Radhika Vyasam, ChCHENNAI V. ITO Non Corporate Ward 17(4), CHENNAI

ITA 2853/CHNY/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6592 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 08-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SRIDHAR; DORA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 68; 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , B BENCH, CHENNAI . , . , BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY, JUDICIAL MEMBER ./ I.T.A.NO.2853/CHNY/2018 / ASSESSMENT YEAR: 2015-16) SMT. RADHIKA VYASAM, NO.103, BALAMURUGAN GARDEN, OKKIYAM, THURAIPAKKAM, CHENNAI 600 097. VS THE INCOME TAX OFFICER, NON CORPORATE WARD 17(4), CHENNAI. PAN: ABWPV0477D ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : SHRI S. SRIDHAR, ADVOCATE / RESPONDENT BY : SHRI SRIDHAR, DORA, JCIT /DATE OF HEARING : 27.02.2019 /DATE OF PRONOUNCEMENT : 27.02.2019 / O R D E R PER A. MOHAN ALANKAMONY, AM:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-5, CHENNAI, DATED 31.07.2018 IN ITA NO.326/CIT(A)-5/2017-18 FOR THE ASSESSMENT YEAR 2015-16 PASSED U/S.250(6) R.W.S. 143(3) OF THE ACT. 2 ITA NO.2853/CHNY/2018 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN HER APPEAL:- 1. THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) 5, CHENNAI DATED 31.07.2018 IN I.T.A.NO.326/CIT(A)-5/2017 -18 FOR THE ABOVE MENTIONED ASSESSMENT YEAR IS CONTRARY TO LAW, FACTS, AND IN THE CIRCUMSTANCES OF THE CASE. 2. THE CIT (APPEALS) ERRED IN SUSTAINING THE ADDITION OF RS.5 LAKHS MADE U/S 68 OF THE ACT BEING THE CASH DEPOSITS ON 10.12.2014 WHICH SUM WAS SHOWN AS ONE OF THE COMPONENTS CONSTITUTING SOURCE FOR PURCHASE OF PROPERTY IN PARA 8.2 OF THE IMPUGNED ORDER WITHOUT ASSIGNING PROPER REASONS AND JUSTIFICATION. 3. THE CIT (APPEALS) ERRED IN SUSTAINING THE ADDITION OF RS.30 LAKHS MADE U/S 68 OF THE ACT REPRESENTING THE MONEY RECEIVED FROM THE COMPANY TO THE APPELLANT'S NRE ACCOUNT WHICH SUM WAS SHOWN AS ONE OF THE COMPONENTS CONSTITUTING SOURCE FOR PURCHASE OF PROPERTY IN PARA 8.3 OF THE IMPUGNED ORDER WITHOUT ASSIGNING PROPER REASONS AND JUSTIFICATION. 4. THE CIT (APPEALS) ERRED IN SUSTAINING THE ADDITION OF RS.11,08,000/- MADE U/S 68 OF THE ACT REPRESENTING THE MONEY RECEIVED FROM THE COMPANY WHICH SUM WAS SHOWN AS ONE OF THE COMPONENTS CONSTITUTING SOURCE FOR PURCHASE OF PROPERTY IN PARA 8.4 OF THE IMPUGNED ORDER WITHOUT ASSIGNING PROPER REASONS AND JUSTIFICATION. 5. THE CIT (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.41,43,000/- BEING THE CASH COMPONENT IN THE PURPOSE OF PROPERTY WHILE REJECTING THE CASH FLOW STATEMENTS AND OTHER SOURCES DEMONSTRATING THE SOURCE FOR THE CASH IN PARA 8.5 ON THE APPLICATION OF SECTION 68 OF THE ACT WITHOUT ASSIGNING PROPER REASONS AND JUSTIFICATION. 6. THE CIT (APPEALS) FAILED TO APPRECIATE THAT THE REJECTION OF THE EXPLANATION OFFERED BY THE APPELLANT SUPPORTED BY MATERIAL EVIDENCES TO QUESTION THE CORRECTNESS OF THE ADDITIONS MADE U/S 68 OF THE ACT IN THE COMPUTATION OF TAXABLE TOTAL INCOME WAS WRONG, ERRONEOUS, UNJUSTIFIED, INCORRECT AND NOT SUSTAINABLE IN LAW. 7. THE CIT (APPEALS) FAILED TO APPRECIATE THAT THERE WAS NO PROPER OPPORTUNITY GIVEN BEFORE PASSING OF THE IMPUGNED ORDER AND ANY ORDER PASSED IN VIOLATION OF THE PRINCIPLES NATURAL JUSTICE WOULD BE NULLITY IN LAW. 3 ITA NO.2853/CHNY/2018 8. THE CIT (APPEALS) FAILED TO APPRECIATE THAT THE ORDER OF ASSESSMENT UNDER CONSIDERATION WAS PASSED OUT OF TIME, INVALID, PASSED WITHOUT JURISDICTION AND NOT SUSTAINABLE BOTH ON FACTS AND IN LAW AND WENT WRONG IN RECORDING THE FINDINGS IN THIS REGARD IN PARA 7.2 OF THE IMPUGNED ORDER WITHOUT ASSIGNING PROPER REASONS AND JUSTIFICATION. 9. THE APPELLANT CRAVES LEAVE TO FILE ADDITIONAL GROUNDS/ARGUMENTS AT THE TIME OF HEARING. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL FILED HER RETURN OF INCOME FOR THE ASSESSMENT YEAR 2015- 16 ADMITTING TOTAL INCOME OF RS.10,49,150/-. THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS AND NOTICE U/S.143(2) OF THE ACT WAS ISSUED. FINALLY ASSESSMENT ORDER WAS PASSED U/S.143(3) OF THE ACT ON 29.12.2017 WHEREIN THE LD.AO MADE SEVERAL ADDITIONS. 4. AT THE OUTSET THE LD.AR SUBMITTED THAT THE LD.CIT(A) HAD PASSED AN EX-PARTE ORDER WITHOUT GIVING ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. THE LD.AR FURTHER SUBMITTED THAT THE ASSESSEES REPRESENTATIVE HAD APPEARED BEFORE THE LD.CIT(A) AND FURNISHED THE DETAILS SOUGHT FOR BUT THE LD.CIT(A) WITHOUT CONFRONTING WITH THE DETAILS FURNISHED BY THE ASSESSEE AND WITHOUT AFFORDING THE FINAL OPPORTUNITY OF BEING HEARD, PASSED AN EX-PARTE ORDER. IT WAS THEREFORE PLEADED THAT ONE MORE OPPORTUNITY MAY BE 4 ITA NO.2853/CHNY/2018 PROVIDED TO THE ASSESSEE IN ORDER TO EXPLAIN THE DETAILS FURNISHED BY HIM BEFORE THE LD.CIT(A). THE LD.DR STRONGLY OPPOSED TO THE SUBMISSION OF THE LD.AR. THE LD.DR FURTHER SUBMITTED THAT THE ASSESSEES REPRESENTATIVE SHRI V. SRINIVASAN, CHARTERED ACCOUNTANT ATTENDED THE PROCEEDINGS FROM TIME TO TIME AND FILED NECESSARY DETAILS BASED ON WHICH THE LD.CIT(A) HAD PASSED THE ORDERS AFTER DULY CONSIDERING THE SAME. IT WAS THEREFORE PLEADED THAT THE ORDERS OF THE LD.REVENUE AUTHORITIES MAY BE CONFIRMED. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE MATERIALS ON RECORD. FROM THE ORDER OF THE LD.CIT(A), IT APPEARS THAT ASSESSEES REPRESENTATIVE HAD APPEARED BEFORE THE LD.CIT(A) TIME TO TIME AND FILED NECESSARY DOCUMENTS. HOWEVER THE LD.CIT(A) HAS NOT RECORDED THE NAME OF THE REPRESENTATIVE PRESENT FOR THE APPELLANT IN THE CAUSE SHEET. HENCE IT APPEARS THAT THE HEARING DID NOT CONCLUDE AND THE LD.CIT(A) HAS PASSED HIS ORDER WITHOUT GIVING THE ASSESSEE THE FINAL OPPORTUNITY OF BEING HEARD. THEREFORE IN THE INTEREST OF JUSTICE, WE HEREBY REMIT THE MATTER BACK TO THE FILE OF LD.CIT(A) FOR DE-NOVA CONSIDERATION THEREBY PROVIDING THE ASSESSEE WITH ONE MORE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS ALSO AT LIBERTY TO FILE ANY FRESH EVIDENCE BEFORE THE 5 ITA NO.2853/CHNY/2018 LD.CIT(A) AND IF THE ASSESSEE OPTS THE SAME, THE LD.CIT(A) IS HEREBY DIRECTED TO CONSIDER THE FRESH EVIDENCE IN ACCORDANCE WITH LAW AND MERIT AFTER OBTAINING REMAND REPORT FROM THE LD.AO. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED HEREIN ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 27 TH FEBRUARY, 2019 AT CHENNAI. SD/- SD/- ( ) (DUVVURU R.L REDDY) /JUDICIAL MEMBER ( . ) (A. MOHAN ALANKAMONY) / ACCOUNTANT MEMBER /CHENNAI, /DATED 27 TH FEBRUARY, 2019 RSR /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. ( )/CIT(A) 4. /CIT 5. /DR 6. /GF