Sri. M. Ramanayaka, Sandur V. DCIT, Bellary

ITA 429/BANG/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8484 (ITAT-BANGALORE)
• Duration Of Justice: 11 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 07-03-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 11-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K BIJU
• Assessee Lawyers: MALLAH A RAO K
• Section: 143(3); 27

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI GEORGE GEORGE K., JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ITA NO. 429/BANG/2016 ASSESSMENT YEAR : 2008-09 SHRI M. RAMANAYAKA, NO. 2, SUSHEELA NAGAR, SANDUR, PAN: AKNPR 4118F VS. THE DEPUTY COMMISSIONER OF INCOME- TAX, CIRCLE -1, BELLARY. APPELLANT RESPONDENT APPELLANT BY : SHRI MALLAHARAO K., ADVOCATE RESPONDENT BY : SHRI M.K. BIJU, JCIT (DR) DATE OF HEARING : 07.03.2017 DATE OF PRONOUNCEMENT : 08.03.2017 O R D E R PER GEORGE GEORGE K., JUDICIAL MEMBER THIS APPEAL AT THE INSTANCE OF ASSESSEE IS DIRECTE D AGAINST CIT(A) ORDER DATED: 29.12.2015. THE RELEVANT ASSESSMENT Y EAR IS 2008-09. 2. THOUGH SEVERAL GROUNDS ARE RAISED IN THIS APPEAL, O NLY TWO ISSUES ARISE FOR OUR CONSIDERATION , NAMELY, ITA NO. 429/BANG/2016 PAGE 2 OF 5 I) WHETHER THE CIT(A) IS JUSTIFIED IN REJECTING THE AP PEAL OF THE ASSESSEE, IN LIMINE WITHOUT GOING INTO THE ISSUE ON MERITS? II) WHETHER ON FACTS AND CIRCUMSTANCES OF THE CASE, PEN ALTY U/S. 271(1)(C) OF THE ACT IS JUSTIFIED OR NOT? 3. BRIEFLY STATED THE FACTS OF THE CASE ARE FOLLOWS. THE ASSESSEE IS AN INDIVIDUAL, WHO DOES CONTRACT WORK. FOR THE RELEVANT ASSESSMENT YEAR, THE RETURN OF INCOME WAS FILED ON 27.09.2008 DECLARING TOTAL INCOME OF 12,06,350/-. THE ASSESSM ENT U/S. 143(3) OF THE ACT WAS COMPLETED ON 30.12.2010 WHEREIN THE TOTAL I NCOME WAS DETERMINED AT RS. 1,11,83,118/-. THEREAFTER PENALTY U/S. 271( 1)(C) OF THE IT ACT WAS IMPOSED AMOUNTING TO RS. 34,00,000/-. 4. AGGRIEVED BY THE ORDER OF PENALTY, ASSESSEE PREFERR ED AN APPEAL TO THE FIRST APPELLATE AUTHORITY. THE CIT(A) DISMISSED TH E APPEAL OF THE ASSESSEE FOR THE REASON ON THE HEARING DATES, THE ASSESSEE N OR HIS AUTHORIZED REPRESENTATIVE ATTENDED THE HEARING. THE CIT(A) DI D NOT GO INTO THE ISSUE ON MERITS AND DISMISSED THE APPEAL IN LIMINE, APPLY ING THE PRINCIPLE LAID DOWN BY THE ORDER OF THE DELHI BENCH OF THE TRIBUNA L IN THE CASE OF CIT VS MULTIPLAN INDIA (P.) LTD. ITA NO. 429/BANG/2016 PAGE 3 OF 5 5. AGGRIEVED BY THE ORDER OF THE FIRST APPELLATE AUTHO RITY ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE THE TRIBUNAL. THE LD. CO UNSEL FOR THE ASSESSEE SUBMITTED THE HEARING NOTICES ISSUED BY THE CIT(A) ON TWO OCCASIONS WERE NEVER RECEIVED BY THE ASSESSEE NOR HIS AUTHORI ZED REPRESENTATIVE AND HENCE THE CASE WAS UNATTENDED BEFORE THE FIRST APPE LLATE AUTHORITY. FURTHER IT WAS SUBMITTED THAT THE ASSESSEE HAS FILE D ADDITIONAL GROUND AND PLACING RELIANCE ON THE JUDGMENT OF THE HONBLE JUR ISDICTIONAL HIGH COURT IN THE CASE OF CIT VS MANJUNATHA COTTON AND GINNING FACTORY REPORTED IN 359 ITR 565, CONTENTED THAT THE PENALTY ORDER PASSE D U/S. 271(1)(C) OF THE ACT IS BAD IN LAW, SINCE THE NOTICES ISSUED U/S. 27 4 R.W.S. 271(1)(C) OF THE ACT DOES NOT SPECIFY THE LIMB OF SECTION 271(1)(C) OF THE ACT FOR INITIATING THE PENALTY PROCEEDINGS. 6. THE LD. DR PRESENT WAS DULY HEARD. 7. WE HAVE HEARD RIVAL SUBMISSION AND PERUSAL MATERIAL ON RECORD. THE PENALTY U/S. 271(1)(C) AMOUNTING TO RS. 34 LAKHS WA S IMPOSED VIDE ORDER DATED 22.06.2011. THE CIT(A) DISMISSED THE APPEAL IN LIMINE SINCE THERE WAS NO REPRESENTATION ON BEHALF OF THE ASSESSEE, ON THE DATE OF HEARING BEFORE HIM. IN THE IMPUGNED ORDER OF THE CIT(A) IT IS MENTIONED THAT HEARING NOTICES DATED 16.11.2015 AND 02.12.2015 WER E ISSUED. IT IS THE CONTENTION OF THE ASSESSEE THAT THE HEARING NOTICES WERE NOT RECEIVED AND ITA NO. 429/BANG/2016 PAGE 4 OF 5 THEREFORE THERE WAS NO REPRESENTATION BEFORE THE CI T(A). THERE IS NOTHING ON RECORD TO SUGGEST THAT THE HEARING NOTICES DATED 16.11.2015 AND 02.12.2015 WERE SERVED ON THE ASSESSEE. THEREFORE IN THE INTEREST OF JUSTICE AND EQUITY WE ARE OF THE VIEW THAT THE MATT ER NEEDS RECONSIDERATION BY THE CIT(A) AND ACCORDINGLY WE RESTORE THE SAME T O THE FILES OF CIT(A). THE CIT(A) SHALL DISPOSE OF THE MATTER AS EXPEDITIO USLY AS POSSIBLE AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. IT IS ORDERED ACCORDINGLY. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 08 TH DAY OF MARCH, 2017 SD/- SD/- (S. JAYARAMAN) (GEORGE GEO RGE K.) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE, DATED, THE 08 TH MARCH, 2017. / MS/ ITA NO. 429/BANG/2016 PAGE 5 OF 5 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.