Mr. Nagraj Gopalkrishna, Phattepur V. Income-Tax Officer, Ward - 1[5], Belagavi

ITA 400/PAN/2018

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 4611 (ITAT-PANAJI)
• Duration Of Justice: 3 year(s) 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: WT(D)
• Assessment Year: 2013-2014
• Appeal Filed On: 16-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income
• Section: 69; 143(3); 292BB; 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER I.T.A. No. 400/PAN/2018 Assessment Year: 2013-14 Sh. Nagraj Gopalkrishna Pattepur, Junnipeth Ramdurg, Distt. Belagavi-591 123 [PAN: AURPP 9275D] Vs. Income Tax Officer Ward-1(5), Belagavi (Appellant) (Respondent) Appellant by : Sh. A. S. Patil, Tax Consultant Respondent by: Sh. Manoj Joshi, CIT, DR Date of Hearing: 07.04.2022 Date of Pronouncement: 22.06.2022 ORDER Per Anikesh Banerjee, JM: The instant appeal was filed by the assessee against the order passed by the Ld. Commissioner of Income Tax (Appeals), Belagavi [in brevity the CIT(A)], bearing ITA No. CIT(A)BGM/10220/2017-18 dated 02.08.2018 passed u/s 250(6) of the Income Tax Act, 1961 (in brevity the Act), for Assessment Year 2013-14. The said appeal was originated from the order of the Ld. Income Tax Officer, ITA No. 400/PAN/2018 Nagraj Gopalkrishna v. ITO 2 Ward -1(5), Belagavi (in brevity the AO) passed u/s 143(3) r.w.s 263 of the Income Tax Act, 1961. 2. The assessee has filed the following grounds of appeal which are as follows: “1] That the Order passed u/s 143[3] r.w.s. 263 dated 21-12-2017 by the Income-Tax Officer and sustained by Commissioner [Appeals] is against Law as Order passed without issue of fresh Notice u/s 143[2] in Reassessment Proceedings which is mandatory and which is not curable mistake. Hence, Order Passed by the Income-Tax Officer and confirmed by the Commissioner [Appeals] is Bad-in-Law requires to be quashed. 2] The Learned Commissioner [Appeals] is not justified in treating Rs. 17,76,144 on account of excess Stock and Cash found in Survey as deemed income - U/S 69- 69A instead of treating the same as Business Income. Hence, findings of the CIT [A] is against Law and facts of the case. 3] Since Income of Rs. 1776144/- assessed U/S 69-69A is opposed to Law and there is no justification for taxing the income @ 30% as per Provisions of Section 115BBE instead of taxing at normal rate of tax. 4] For these and other grounds may be urged at the time of hearing of the appeal.” 3. Brief fact is that the assessee in his first ground of appeal mentioned that during proceeding of the assessment u/s 143(3) r.w.s. 263 of the Act, the Ld. AO did not issue notice u/s 143(2) of the Act. The addition also made related to undisclosed cash of Rs.1,57,153/- and undisclosed stock of Silver Ornaments amount of Rs.16,18,991/- during assessment. The total undisclosed investment was added back u/s 69 amount to Rs.17,76,144/-. The assessee first time agitated the legal ground, non issuance of notice u/s 143(3) of the Act before the Bench. The ITA No. 400/PAN/2018 Nagraj Gopalkrishna v. ITO 3 assessee filed an appeal against the order of the Ld. AO before the Ld. CIT(A). The Ld. CIT(A) upheld the order of the Ld. AO. Accordingly, aggrieved assessee filed an appeal before the bench. 4. The issue related to non issuance of notice u/s 143(2) is a very important issue which is under question valid or not u/s 292BB of the Act. But the ground is first time agitated before the Ld. ITAT. Related other grounds addition of stock and cash which the Ld. AO was added back u/s 69 of the Act and calculated tax u/s 115BBE of the Act @ of 30% tax. 5. The Ld. DR argued and relied on the order of Ld. CIT(A). 6. We considered the rival submissions and documents available in the record. The Ld. counsel of the assessee filed a paper book which is kept in the record but the first the legal issue related to non issuance of notice u/s 143(2) is agitated which is a vital issue and that should be adjudicated by the Ld. CIT(A). Related to application of u/s 115BBE for calculation of tax, the Ld. AO filed the following judgments of Pr. CIT v. Bajargan Traders DB in ITA No. 258/2017 AY 2013-14 dated 12.09.2017 (Rajasthan High Court) and Lovish Singhal & Ors in ITA No. 143/Jodh/2018 AY 2014-15 dated 25.05.2018. The section 115BBE is substituted by the Taxation laws Act, 2016 w.e.f. 01/04/2017. Before adjudication of legal issue, the other issues are not accepted for discussion in this stage. We directed the ITA No. 400/PAN/2018 Nagraj Gopalkrishna v. ITO 4 assessee to submit all the relevant documents before the Ld. CIT(A). The matter is setting aside before the Ld. CIT(A) for adjudication both the legal and factual grounds. On the other hand, the assessee should allow the reasonable opportunity for redressal of his grievance. 7. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 22.06.2022 Sd/- Sd/- (Dr. M. L. Meena) (Anikesh Banerjee) Accountant Member Judicial Member Date: 22.06.2022 *GP/Sr. PS* Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(A), (4) The CIT concerned (5) The Sr. DR, I.T.A.T. (6) The Guard File True Copy By Order Sr. Private Secretary Income Tax Appellate Tribunal