Late H Rajanna L/R R.Mahesh , Bangalore V. Income Tax Officer Ward-1(2)(4), Bangalore

ITA 48/BANG/2018

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5530 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2001-2002
• Appeal Filed On: 05-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Opportunity of being heard; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-C BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 48 / BANG/201 8 ASSESSMENT YEAR : 2001 - 02 LATE H. RAJANNA, REPRESENTED BY L/R SHRI R. MAHESH, NO. 30, KEERTHI LAYOUT, KAMMANAHALLI MAIN ROAD, ST. THOMAS POST, BANGALORE 560 084. PAN: ADAPR5985J THE INCOME TAX OFFICER, WARD 1 (2) (4), BANGALORE. APPELLANT RESPONDENT A SSESSEE BY : SHRI R. RAMAKRISHNAN, CA RE VENUE BY : SHRI BALAKRISHNAN .N, ADDL. CIT (DR) DATE OF HEARING : 2 8 .0 2 .2018 DATE OF PRONOUNCEMENT : 28 . 0 2 .201 8 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE WHICH IS DIREC TED AGAINST THE ORDER OF LD. CIT(A) -1, BANGALORE DATED 31.07.2017 FOR ASSESSMEN T YEAR 2001-02. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPELLANT ARE OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES, FACT AND CIRCUMSTANCES OF THE CASE. 2. THE ORDER PASSED BY THE HON'BLE CIT (APPEALS) 4 CONFIRMING THE ADDITION MADE BY THE LEARNED AO OF RS.3,90,000/- AS UNEXPLAINED INVESTMENT IS WRONG SINCE THE APPELLANT HAS VIDE HI S LETTER DATED 21/02/2011 EXPLAINED THE SAME IN DETAIL. 3. THE HON'BLE CIT (A), INSTEAD OF PASSING THE ORDE R BASED ON THE LETTER OF THE APPELLANT DATED 21/02/2011 MENTIONED SUPRA, KEPT THE PASSING OF THE ORDER IN ABEYANCE FOR SUCH A LONG PE RIOD OF OVER 6 YEARS IN CONTRAVENTION OF THE PROVISIONS OF SECTION 250(6A) OF THE INCOME TAX ACT, 1961 AND ALSO ERRED IN REJECTING TH E SUBMISSIONS AND ARGUMENTS OF THE APPELLANT BY STATING THAT '... IN THE ABSENCE OF THE CORRECT LATEST ADDRESS IT WILL NOT SERVE ANY PURPOS E BY GIVING ANY ITA NO. 48/BANG/2018 PAGE 2 OF 4 FURTHER OPPORTUNITIES IN THE MATTER. THEREFORE IN T HE ABSENCE OF THE MATERIAL EVIDENCE SOUGHT BY THIS OFFICE, THE APPEAL IS DISPOSED OF ON THE BASIS OF THE MATERIAL AVAILABLE ON THE RECORD.' 4. THE HON'BLE CIT (A) OUGHT TO HAVE LOOKED INTO TH E PROVISIONS OF SECTION 250(6A) WHICH STATES THAT '(6A) - IN EVERY APPEAL, THE COMMISSIONER (APPEALS), WHERE IT IS POSSIBLE, MAY H EAR AND DECIDE SUCH APPEAL WITHIN A PERIOD OF ONE YEAR FROM THE EN D OF THE FINANCIAL YEAR IN WHICHSUCH APPEAL IS FILED BEFORE HIM UNDER SUB-SECTION (1) OF SECTION 246A.' 5. HENCE BASED ON THE ABOVE, THE ORDERS OF THE AUTH ORITIES BELOW SHALL BE SET ASIDE ON FACTS AND MERITS. 6. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGE D AND PRESENTED AT THE TIME OF HEARING OF THE APPEAL, THE APPELLANT HUMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED. 3. THIS APPEAL IS FILED LATE BY THE ASSESSEE AND TH E DELAY IS OF 18 DAYS. THE ASSESSEE HAS SUBMITTED AN APPLICATION FOR CONDONATI ON OF DELAY ALONG WITH AN AFFIDAVIT. IN THE SAME, IT IS STATED THAT THE ORDER OF CIT(A) WAS RECEIVED BY THE ASSESSEE ON 20.10.2017 AND THEREFORE, THE APPEAL AG AINST THIS ORDER WAS TO BE FILED BEFORE THE TRIBUNAL ON OR BEFORE 18.12.2017 B UT THE SAME WAS FILED ON 05.01.2018 AND THEREFORE, THERE IS DELAY OF 18 DAYS IN FILING THE APPEAL. REGARDING THE REASONS FOR THIS DELAY, IT IS SUBMITT ED THAT SOON AFTER THE RECEIPT OF THIS APPELLATE ORDER IN OCTOBER 2017, THE ASSESS EE COULD NOT FILE THE APPEAL IN TIME BECAUSE ALL THE ARS AND CHARTERED ACCOUNTA NTS WERE PREOCCUPIED WITH THE TAX AUDIT FINALIZATION AND OTHER TIME BARRING S CRUTINY ASSESSMENTS OF THEIR CLIENTS. IT IS SUBMITTED THAT UNDER THESE FACTS, T HIS SMALL DELAY OF 18 DAYS SHOULD BE CONDONED. THE LD. DR OF REVENUE SUBMITTED THAT THERE IS NO REASONABLE CAUSE SHOWN BY THE ASSESSEE REGARDING THIS DELAY OF 18 DAYS AND THEREFORE, THE DELAY SHOULD NOT BE CONDONED. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AD CONSI DERING THE FACTS OF THE PRESENT CASE, I FEEL IT PROPER TO CONDONE THIS SMALL DELAY OF 18 DAYS AND ACCORDINGLY, I CONDONE THE DELAY AND ADMIT THE APPEAL. ITA NO. 48/BANG/2018 PAGE 3 OF 4 5. REGARDING MERIT, IT WAS SUBMITTED BY LD. AR OF A SSESSEE THAT IT IS NOTED BY CIT (A) IN THE IMPUGNED ORDER THAT APPEAL WAS FILED ON 30.01.2008 AND ALTHOUGH NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE EARL IER THREE DATES I.E. 12.11.2008, 12.01.2011 AND 01.02.2011, THE APPEAL W AS AGAIN FIXED FOR HEARING ON 21.02.2011 AND THE LD. AR OF ASSESSEE APPEARED O N THAT DATE AND FILED TWO PAGES NOTE DATED 21.02.2011 AND THE CASE WAS ADJOUR NED TO 16.03.2011. HE SUBMITTED THAT ON 16.03.2011, NONE APPEARED ON BEHA LF OF THE ASSESSEE BUT THE FINAL NOTICE OF HEARING SENT BY CIT(A) FOR HEARING ON 24.07.2017 WAS NOT SERVED ON THE ASSESSEE AND THIS IS NOTED BY CIT(A) ALSO TH AT THE NOTICE HAS COME BACK UNSERVED BY THE POSTAL DEPARTMENT SAYING THAT THE A SSESSEE IS NOT FOUND. HE SUBMITTED THAT IT IS AN ADMITTED FACT THAT THE NOTI CE OF HEARING WAS NOT SERVED BUT THE ORDER OF CIT (A) WAS DULY SERVED ON THE ASS ESSEE ON THE SAME ADDRESS. HE SUBMITTED THAT UNDER THESE FACTS, THE MATTER MAY BE RESTORED BACK TO THE FILE OF CIT (A) FOR FRESH DECISION AFTER PROVIDING ADEQU ATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. DR OF REVENUE SUPPORTED T HE ORDER OF CIT(A). 6. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. CONSID ERING THE FACTS OF THE PRESENT CASE, I FEEL IT PROPER THAT IN THE INTEREST OF JUST ICE, THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF CIT (A) FOR FRESH DECISION AFTE R PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, I SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF CIT(A) F OR FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BO TH SIDES. IN VIEW OF THIS DECISION, NO ADJUDICATION IS CALLED FOR ON MERIT OF THE CASE AT THIS STAGE. HENCE, I DO NOT MAKE ANY COMMENT ON THE MERIT OF THE CASE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 28 TH FEBRUARY, 2018. /MS/ ITA NO. 48/BANG/2018 PAGE 4 OF 4 COPY TO: 1. APP ELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.