Tono Foam , Bangalore V. Assistant Commissioner of Income Tax Officer Circle-7(2)(1), Bangalore

ITA 485/BANG/2018

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 2615 (ITAT-BANGALORE)
• Duration Of Justice: 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 20-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SRINANDINI DAS
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH B BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K GARODIA, ACCOUNTANT MEMBER ITA NO.485/BANG/2018 (ASST. YEAR 2014-15) M/S TONO FOAM, 2/7, FRIENDS COLONY SINIVAGILU EXTN., VIVEKNAGAR POST, KORAMANGALA, BENGALURU. . APPELLANT PAN AAIFT6728N. VS. THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-7(2)(1), BENGALURU. . RESPONDENT APPELLANT BY : SMT. SUMAN LUNKAR, C.A RESPONDENT BY : SMT. SRINANDINI DAS, JCIT DATE OF HEARING : 26-09-2018 DATE OF PRONOUNCEMENT : -09-2018 O R D E R PER SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER : THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST TH E ORDER OF THE CIT(A), INTER ALIA, ON FOLLOWING GROUNDS: 1. THE LEARNED ASSISTANT COMMISSIONER OF INCOME TAX, HAD ERRED IN PASSING THE ORDER IN THE MANNER PASSED BY HIM AND THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE SAME. THE ORDER PASSED IS BAD IN LAW AND AGAINST TH E PRINCIPLES OF NATURAL JUSTICE AND IS REQUIRED TO BE QUASHED IN TOTO. ITA NO.985/B/18 2 2. THE LEARNED CIT(A) HAS ERRED IN DISMISSING THE APPEAL FILED BY THE APPELLANT HOLDING THAT AS THE APPELLANT DID NOT RESPOND TO THE NOTICES OF HEARING ISSUED, THE CLAIM OF THE APPELLANT WITH RESPECT TO COST OF IMPROVEMENT REMAINED UNVERIFIED AND UNSUBSTANTIATED. THE ACTION OF CIT(A) PASSING THE ORDER EXPARTE BEING BAD IN LAW AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE MAKES THE APPELLATE O RDER BAD IN LAW AND SUCH ORDER IS LIABLE TO BE QUASHED. 3.1 IN ANY CASE, THE LEARNED ASSESSING OFFICER HAD ERRED IN DISALLOWING THE ENTIRE INDEXED COST OF IMPROVEMENT CLAIMED WHILE COMPUTING THE LONG TERM CAPITAL GAIN EARNED ON SALE OF PROPERTY 3.2 THE ASSESSING OFFICER HAD ERRED IN HOLDING THAT THE CLAIM IS NOT SUPPORTED BY DOCUMENTARY EVIDENCE. 3.3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE LAW APPLICABLE, THE ENTIRE COST OF IMPROVEMENT IS D ULY EXPLAINABLE WITH DOCUMENTARY EVIDENCES. THE DISALLOWANCE BEING CONTRARY TO AVAILABLE FACTS AND LAW IS TO BE DELETED IN TOTO. 3.4 THE VARIOUS OBSERVATIONS / CONCLUSIONS DRAWN MADE DURING THE COURSE OF ASSESSMENT PROCEEDINGS AR E CONTRARY TO AVAILABLE FACTS AND LAW ARE TO BE DISREGARDED. 3.5 ON PROPER APPRECIATION OF FACTS OF CASE AND EVIDENCE AVAILABLE, THE COST OF IMPROVEMENT AS CLAI MED BY APPELLANT HAS TO BE ALLOWED. 4. THE APPELLANT DENIES THE LIABILITY TO PAY INTERE ST U/S 234B OF THE ACT. THE INTEREST HAVING BEEN LEVIED ERRONEOUSLY IS TO BE DELETED. 2. DURING THE COURSE OF HEARING, THE LEARNED COU NSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION THAT CIT(A) HAS DISMISSED THE APPEAL EX- PARTE WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. DESPITE REQUEST OF THE ASSESSEE, THE CI T(A) HAS NOT ITA NO.985/B/18 3 AFFORDED OPPORTUNITY AND DISPOSED OFF THE APPEAL EX -PARTE THAT TOO NOT ON MERIT. 3. THE LEARNED DR ON THE OTHER HAND PLACED RELIA NCE UPON THE ORDER OF CIT(A). 4. HAVING CAREFULLY EXAMINED THE ORDERS OF LOW ER AUTHORITIES IN THE LIGHT OF RIVAL SUBMISSIONS, WE FIND THAT CIT(A) HAS DISPOSED OFF THE APPEAL EX-PARTE WITHOUT AFFORDING PROPER OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE. WE, THEREFORE, SET ASIDE THE ORDE R OF THE CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE-ADJUDICATE THE GROUNDS RAISED BEFORE HIM ON MERIT, AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH OCT , 2018 . SD/- SD/- (A.K GARODIA) (SUNI L KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEM BER BANGALORE DATED : 5/10/2018 VMS COPY TO :1. THE ASSESSEE 2. THE REVENUE 3.THE CIT CONCERNED. 4.THE CIT(A) CONCERNED 5.DR 6.GF BY ORDER ASST. REGISTRAR, I TAT, BANGALORE. ITA NO.985/B/18 4 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 .. 9. 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 RE GISTRAR 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. ..