Sri Kamalesh Narayanaswamy, Bangalore V. Income Tax Officer Ward-6(3)(4), Bangalore

ITA 384/BANG/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9476 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 04-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R.N SIDDAPPAJI
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Additional evidence; Set aside
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI B.R BASKARAN, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER ITA NO.384/BANG/2019 ASSESSMENT YEAR : 2015-16 SRI KAMALESH NARAYANASWAMY, NEAR KESHAVASWAMY TEMPLE, VIJAYAPURA, DEVANAHALLI, BENGALURU-562 135. PAN CHMPK 0263 N VS. THE INCOME-TAX OFFICER, WARD-6(3)(4), BENGALURU. APPELLANT RESPONDENT APPELLANT BY : SHRI S.V RAVISHANKAR, ADVOCATE RESPONDENT BY : SHRI R.N SIDDAPPAJI, ADDL. CIT DATE OF HEARING : 01.07.2019 DATE OF PRONOUNCEMENT : 02.07.2019 O R D E R PER B.R BASKARAN, ACCOUNTANT MEMBER THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING TH E ORDER DATED 11/12/2018 PASSED BY LD CIT(A)-6, BENGALURU A ND IT RELATES TO ASST. YEAR 2015-16. THE ASSESSEE IS CHALLENGING THE ADDITION MADE BY THE AO TOWARDS UNEXPLAINED BANK DEPOSITS. 2. AT THE OUTSET, THE LD AR SUBMITTED THAT THE ASSE SSEE COULD NOT APPEAR BEFORE THE AO FOR REASONS BEYOND HIS CONTROL AND HENCE THE AO WAS CONSTRAINED TO PASS THE ASST. ORDER TO THE B EST OF HIS JUDGMENT U/S 144 OF THE INCOME-TAX ACT 1961 (THE A CT). THE LD AR ITA NO.384/BANG/2019 PAGE 2 OF 5 SUBMITTED THAT THE ASSESSEE HAD FILED ITS RETURN OF INCOME BY GIVING ADDRESS OF HIS PERMANENT RESIDENCE. THE SAID HOUSE HAS BEEN RENTED OUT AND THE ASSESSEE HAS SHIFTED HIS RESIDEN CE TO A NEW PLACE. THE SAME IS EVIDENCED BY THE RENTAL AGREEME NT DATED 10/2/2106 FURNISHED AT PAGES 179 TO 181 OF THE PAPE R BOOK. THE VARIOUS NOTICES ISSUED BY THE AO WERE SERVED AT THE PERMANENT ADDRESS AND THEY WERE NOT HANDED OVER TO THE ASSESS EE BY THE TENANT. HENCE THE ASSESSEE COULD NOT APPEAR BEFORE THE AO. 3. THE LD A.R FURTHER SUBMITTED THAT THE ASSESSE E GAVE VERY SAME EXPLANATIONS BEFORE LD CIT(A), BUT THE FIRST APPELL ATE AUTHORITY WAS NOT CONVINCED BY IT. HENCE HE HAS REFUSED TO ADMIT THE ADDITIONAL EVIDENCES FURNISHED BY THE ASSESSEE TO PROVE THE SO URCES AND GENUINENESS OF BANK DEPOSITS ASSESSED IN THE HANDS OF THE ASSESSEE. ACCORDINGLY THE LD AR SUBMITTED THAT THE RE WAS SUFFICIENT CAUSE FOR THE ASSESSEE FOR NOT APPEARING BEFORE THE AO. ACCORDINGLY HE PRAYED THAT THE ADDITIONAL EVIDENCES FURNISHED B Y THE ASSESSEE BEFORE THE LD CIT(A) TO EXPLAIN THE SOURCES OF BANK DEPOSITS MAY KINDLY BE ADMITTED AND THE MATTER MAY BE RESTORED T O THE FILE OF THE AO FOR EXAMINING THEM AFRESH. 4. ON THE CONTRARY, THE LD DR STRONGLY OPPOSED TO T HE PLEA PUT FORTH BY THE LD AR. THE LD DR SUBMITTED THAT THE A SSESSEE HAS BEEN GIVEN NOTICES TO THE ADDRESS FURNISHED IN THE RETUR N OF INCOME. HE SUBMITTED THAT IT IS THE DUTY OF THE ASSESSEE TO IN TIMATE THE CHANGE IN ADDRESS. FURTHER THE ASSESSEE WAS CONTACTED OVE R PHONE ALSO BY THE AO. HOWEVER THE ASSESSEE HAS NOT RESPONDED TO THE PHONE CALLS AND ALSO TO THE NOTICES ISSUED BY THE AO. HENCE, T HE AO WAS ITA NO.384/BANG/2019 PAGE 3 OF 5 CONSTRAINED TO LEVY PENALTY U/S 271(1)(B) OF THE AC T ALSO. ACCORDINGLY THE LD DR SUBMITTED THAT THE ASSESSEES PLEA SHOULD NOT BE ACCEPTED AND ORDER PASSED BY LD CIT(A) SHOULD BE UPHELD. 5. HAVING HEARD THE RIVAL CONTENTIONS, WE ARE OF T HE VIEW THAT, IN THE INTEREST OF NATURAL JUSTICE, THE ASSESSEE SH OULD BE PROVIDED WITH AN OPPORTUNITY TO FURNISH EVIDENCES IN ORDER T O PROVE THE DEPOSITS MADE INTO THE BANK ACCOUNT OF THE ASSESSEE , WHICH HAS BEEN ASSESSED AS UNEXPLAINED CASH CREDITS. HOWEVE R, AS CONTENDED BY THE LD D.R, IT IS THE DUTY OF THE ASSE SSEE TO INTIMATE CHANGE IN ADDRESS. ACCORDINGLY, WE ARE OF THE VIEW THAT THE PRAYER OF THE ASSESSEE SHOULD BE ACCEPTED ON CERTAIN TERMS . ACCORDINGLY, WE IMPOSE A COST OF RS.10,000/- ON THE ASSESSEE, WH ICH SHALL BE PAID TO THE CREDIT OF THE INCOME-TAX DEPARTMENT AS OTHER FEES WITHIN ONE MONTH FROM THE DATE OF RECEIPT OF THIS O RDER OF THE TRIBUNAL. SUBJECT TO THE PAYMENT OF THE ABOVE COST , WE SET ASIDE THE ORDER PASSED BY THE LD CIT(A) AND RESTORE ALL T HE ISSUES CONTESTED BEFORE US TO THE FILE OF THE AO FOR EXAMI NING THEM AFRESH. AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD , THE AO MAY TAKE APPROPRIATE DECISION IN ACCORDANCE WITH LAW. ITA NO.384/BANG/2019 PAGE 4 OF 5 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND JULY, 2019. SD/ - (BEENA PILLAI) JUDICIAL MEMBER SD/ - (B.R BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED, 2ND JULY, 2019. /VMS / COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3 . THE CIT 4. THE CIT(A) 5. THE DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER A SST. REGISTRAR, ITAT, BANGALORE. ITA NO.384/BANG/2019 PAGE 5 OF 5 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 SR.P.S .. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER .. 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. 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 .. DATE ON WHICH ORDER GOES 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 REGISTRAR FOR SIGNATURE ON THE ORDER . 12. THE DATE ON WHICH THE FILE GOES TO DISPATCH SEC TION FOR DISPATCH OF THE TRIBUNAL ORDER . 13. DATE OF DESPATCH OF ORDER. ..