Sri. K.N. Surendra Reddy & Smt. Vinutha S. Reddy, Bangalore V. ACIT, Bangalore

ITA 332/BANG/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0347 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 06-06-2016
• Assessment Year: 2002-2003
• Appeal Filed On: 10-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUNIL KUMAR AGGARWALA
• Assessee Lawyers: S VENKATESAN
• Keywords: Opportunity of being heard
• Section: 234B; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRI BUNAL BANGALORE BENCH C, BANGALORE BEFORE SHRI A.K.GARODIA, AM (SMC) ITA NOS.332 & 333(B)/2014 (ASSESSMENT YEARS : 2002-03 & 2003-04) SHRI K.N.SURENDRA REDDY & SMT. VINUTHA S REDDY, NO.109, 17 TH C MAIN, V BLOCK, KORAMANGALA, BANGALORE-560 095 PAN NO.AADHS6630R APPELLANT VS THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-7(1), BANGALORE RESPONDENT ASSESSEE BY : SHRI S. VENKATESAN, CA REVENUE BY : SHRI SUNIL KUMAR AGGARWALA, JCIT DATE OF HEARING : 06-06-2016 DATE OF PRONOUNCEMENT : O R D E R PER SHRI A.K.GARODIA, AM: BOTH THESE APPEALS ARE FILED BY THE ASSESSEE WHICH ARE DIRECTED AGAINST THE ORDERS OF CIT(A), BANGALORE DATED 28-11 -2013 FOR THE ASSESSMENT YEARS 2002-03 & 2003-04. BOTH THESE APP EALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON O RDER FOR THE SAKE OF CONVENIENCE. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS ; ITA NOS.332 & 333(BANG)2014 2 1. THE ORDER OF THE LD. IT(A) IN SO FAR AS IT SUST AINS ADDITION IMPU8GNED IN THIS APPEAL AND ONLY ALLOWING THE APPEAL PARTLY INSTEAD OF TOTALLY IS OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE. 2. THE ORDER OF RE-ASSESSMENT IS BAD IN LAW AND VOI D- AB-INITIO FOR WANT OF REQUISITE JURISDICTION ESPECI ALLY, THE MANDATORY REQUIREMENTS TO ASSUME JURISDICTION U/S 1 48 OF THE ACT, DID NOT EXISTS AND HAVE NOT BEEN COMPLIED WITH AND CONSEQUENTLY, THE ASSESSMENT REQUIRES TO BE CANCELL ED. 3. THE ORDER OF ASSESSMENT PASSED U/S 144 OF THE AC T, IS BAD IN LAW IN AS MUCH AS THERE HAS BEEN NO DEFAU LT AS ENVISAGED INSEC.144 OF THE ACT, SO AS TO WARRANT AN ORDER UNDER THAT SECTION AND HENCE THE ASSESSMENT REQUIRE S TO BE CANCELLED. 4. THE LD. CIT(A) IS NOT JUSTIFIED IN SUSTAINING TH E ADDITION OF A SUM OF RS.1,50,000/- DECLARED AS AGRI CULTURAL INCOME AS INCOME FROM OTHER SOURCES UNDER THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE. 5. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER W ITHOUT THE HONBLE CCIT/DG, THE APPELLANTS DENIES THEMSEL VES LIABLE TO BE CHARGED TO INTEREST U/S 234B OF THE AC T, WHICH UNDER THE FACTS AND CIRCUMSTANCES OF THE APPELLANT S CASE DESERVES TO BE CANCELLED. 6. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGE D AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLAN T HUMBLY PRAYS THAT HE APPEAL MAY BE ALLOWED AND JUSTICE REN DERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTI NG THE APPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITU TION FEES AS PART OF THE COSTS. ITA NOS.332 & 333(BANG)2014 3 3. SIMILARLY, THE GROUNDS RAISED BY THE ASSESSEE F OR THE ASSESSMENT YEAR 2003-04 ARE AS UNDER 1. THE ORDER OF THE LD. IT(A) IN SO FAR AS IT SUSTAINS ADDITION IMPU8GNED IN THIS APPEAL AND ONLY ALLOWING THE APPEAL PARTLY INSTEAD OF TOTALLY IS OP POSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, FACTS AND CIRCUMST ANCES OF THE APPELLANTS CASE. 2. THE ORDER OF RE-ASSESSMENT IS BAD IN LAW AND VOI D- AB-INITIO FOR WANT OF REQUISITE JURISDICTION ESPECI ALLY, THE MANDATORY REQUIREMENTS TO ASSUME JURISDICTION U/S 1 48 OF THE ACT, DID NOT EXISTS AND HAVE NOT BEEN COMPLIED WITH AND CONSEQUENTLY, THE ASSESSMENT REQUIRES TO BE CANCELL ED. 3. THE ORDER OF ASSESSMENT PASSED U/S 144 OF THE AC T, IS BAD IN LAW IN AS MUCH AS THERE HAS BEEN NO DEFAU LT AS ENVISAGED INSEC.144 OF THE ACT, SO AS TO WARRANT AN ORDER UNDER THAT SECTION AND HENCE THE ASSESSMENT REQUIRE S TO BE CANCELLED. 4. THE LD. CIT(A) IS NOT JUSTIFIED IN SUSTAINING TH E ADDITION OF A SUM OF RS.1,50,000/- DECLARED AS AGRI CULTURAL INCOME AS INCOME FROM OTHER SOURCES UNDER THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE. 5. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER W ITHOUT THE HONBLE CCIT/DG, THE APPELLANTS DENIES THEMSEL VES LIABLE TO BE CHARGED TO INTEREST U/S 234B OF THE AC T, WHICH UNDER THE FACTS AND CIRCUMSTANCES OF THE APPELLANT S CASE DESERVES TO BE CANCELLED. 6. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGE D AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLAN T HUMBLY PRAYS THAT HE APPEAL MAY BE ALLOWED AND JUSTICE REN DERED ITA NOS.332 & 333(BANG)2014 4 AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTI NG THE APPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITU TION FEES AS PART OF THE COSTS. 4. AT THE VERY OUTSET, IT WAS SUBMITTED BY THE LEA RNED AR OF THE ASSESSEE THAT THE GROUND NO.2 RAISED BEFORE THE LD. CIT(A) WAS NOT DECIDED BY HIM AND THEREFORE, THE MATTER SHOULD BE RESTORED TO THE FILE OF THE LD. CIT(A) FOR DECIDING GROUND NO.2 IN BOTH THESE YEARS . HE ALSO SUBMITTED THAT THE ASSESSEE IS CHALLENGING THE JURISDICTION O F THE ASSESSING OFFICER U/S 148 OF THE IT ACT, 1961 AS PER THIS GROUND NO.2 IN BOTH THESE ASSESSMENT YEARS AND HENCE, THE MATTER SHOULD BE RE STORED TO THE FILE OF THE LD. CIT(A) WITH OPEN REMAND. 5. THE LEARNED DR OF THE REVENUE SUPPORTED THE ORD ERS OF THE AUTHORITIES BELOW. 6. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST , I REPRODUCE GROUND NO.2 RAISED BY THE ASSESSEE BEFORE THE CIT(A ) IN ASSESSMENT YEAR 2002-03, WHICH IS AS UNDER: 2. THE ORDER OF RE-ASSESSMENT IS BAD IN LAW AND V OID- AB-INITIO FOR WANT OF REQUISITE JURISDICTION ESPECI ALLY, THE MANDATORY REQUIREMENTS TO ASSUME JURISDICTION U/S 1 48 OF THE ACT, DID NOT EXISTS AND HAVE NOT BEEN COMPLIED WITH AND CONSEQUENTLY, THE ASSESSMENT REQUIRES TO BE CANCELL ED. ITA NOS.332 & 333(BANG)2014 5 7. SIMILARLY, GROUND NO.2 RAISED BY THE ASSESSEE B EFORE THE LD. CIT(A) IN ASSESSMENT YEAR 2003-04 IS ALSO RE-PRODUCED AS U NDER; 2. THE ORDER OF RE-ASSESSMENT IS BAD IN LAW AND VOI D- AB-INITIO FOR WANT OF REQUISITE JURISDICTION ESPECI ALLY, THE MANDATORY REQUIREMENTS TO ASSUME JURISDICTION U/S 1 48 OF THE ACT, DID NOT EXISTS AND HAVE NOT BEEN COMPLIED WITH AND CONSEQUENTLY, THE ASSESSMENT REQUIRES TO BE CANCELL ED. 8. AS PER THE ORDER OF THE LD. CIT(A) IN BOTH THE SE ASSESSMENT YEARS, I FIND THAT THIS GROUND OF THE ASSESSE WAS NOT DECIDE D BY THE LD. CIT(A) AND SINCE THE ASSESSEE HAS CHALLENGED THE JURISDICTION OF THE AO U/S 148 OF THE IT ACT, 1961 IN BOTH THESE YEARS BEFORE DECIDING TH IS ISSUE, THE DECISION OF THE LD. CIT(A) ON OTHER ISSUES IS NOT VALID. 9. FIRST OF ALL, THE LD. CIT(A) HAS TO DECIDE THE JURISDICTION ISSUE AND THEREAFTER, HE SHOULD DECIDE THE OTHER ISSUES, IF H E FINDS THAT THE AO HAS JURISDICTION TO FRAME THE ASSESSMENT U/S 148 OF THE IT ACT, 1961. THEREFORE, I SET ASIDE THE ORDERS OF THE LD. CIT(A) IN BOTH THESE ASSESSMENT YEARS AND RESTORE THE ENTIRE MATTER BACK TO HIS FIL E IN BOTH YEARSWITH A DIRECTION TO FIRST DECIDE THE JURISDICTION ISSUE RA ISED BY THE ASSESSEE IN GROUND NO.2, IN BOTH THESE ASSESSMENT YEARS AND THE REAFTER, IF HE FINDS THAT THE AO WAS NOT HAVING JURISDICTION U/S 148 OF THE I T ACT, NOTHING REMAINS TO BE DECIDED BECAUSE IN THAT SITUATION, THE ASSESS MENT WOULD BE A NULLITY. BUT IF HE FINDS THAT THE AO IS HAVING PROPER JURISD ICTION U/S 148 OF THE ACT, ITA NOS.332 & 333(BANG)2014 6 THEN HE SHOULD DECIDE THE OTHER ISSUES AFRESH IN BO TH THESE ASSESSMENT YEARS. NEEDLESS TO SAY, HE SHOULD PROVIDE ADEQUAT E OPPORTUNITY OF BEING HEARD TO BOTH SIDES. 10. IN THE RESULT, BOTH THE APPEALS FILED BY THE A SSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MEN TIONED IN CAPTION PAGE. (A.K.GARODIA) ACCOUNTANT MEMBER D A T E D : PLACE: BANGALORE AM* COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER AR, ITAT, BANGALORE ITA NOS.332 & 333(BANG)2014 7 1. DATE OF DICTATION .. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P. S. .. 4 DATE ON WHICH THE ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT .. 5. DATE ON WHICH THE ORDER COMES BACK TO THE SR. P.S. .. 6. DATE OF UPLOADING THE ORDER ON WEBSITE .. 7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO . 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. DATE ON WHICH ORDER DOES FOR XEROX & ENDORSEMENT . 10. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK. 11 THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER. 12 THE DATE ON WHICH THE FILE GOES TO THE DISPATCH SEC TION FOR DISPATCH OF THE TRIBUNAL ORDER 13 DATE OF DISPATCH OF ORDER ITA NOS.332 & 333(BANG)2014 8