Sri.Shashi Shekar Naik , Bangalore V. The Income Tax Officer Ward-6(2)(1), Bangalore

ITA 487/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7743 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-04-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 20-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P RENUGADEVI
• Assessee Lawyers: V SRINIVASAN
• Keywords: Opportunity of being heard
• Section: 234B; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 487 / BANG/201 8 ASSESSMENT YEAR : 2 0 09 - 10 SHRI SHASHI SHEKAR NAIK, # 42, 1 ST MAIN ROAD, 3 RD STAGE, 3 RD BLOCK, BASAVESHWARANAGAR, BANGALORE 560 079. PAN: AOIPS7581L VS. THE INCOME TAX OFFICER, WARD -8[3], NOW WARD 6 [2] [1], BANGALORE. APPELLANT RESPONDENT ASSESSEE BY : SHRI V. SRINIVASAN, ADVOCATE R EVENUE BY : SMT. P. RENUGA DEVI, JCIT (DR) DATE OF HEARING : 0 8 .0 4 .2019 DATE OF PRONOUNCEMENT : 16. 0 4 .2019 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE AND THE SAME IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-6, BANGALORE DATED 16.10.2017 FOR ASSESSMENT YEAR 2009-10. 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, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED CIT[A] IS NOT JUSTIFIED IN UPHOLDING THE ASSESSMENT COMPLETED BY THE LEARNED AO U/S.144 OF THE ACT UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 3. THE LEARNED CIT[A] IS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF RS.46,40,000/- AS UNEXPLAINED CASH DEPOSITS IN THE BANK ACCOUNT OF THE APPELLANT UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 4. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT[A] OUGHT NOT TO HAVE SUSTAINED THE ENTIRE CASH DEPOSITS AND OUGHT TO HAVE TAXED ONLY ITA NO.487/BANG/2018 PAGE 2 OF 4 THE PEAK CASH CREDIT UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 5. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WITH THE HON'BLE CCIT/DG, THE APPELLANT DENIES HIMSELF LIABLE TO BE CHARGED TO INTEREST U/S.234-A, 234-B AND 234-C OF THE ACT, WHICH UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE AND THE LEVY DESERVES TO BE CANCELLED. 6. FOR THE ABOVE .AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTING THE APPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITUTION FEES AS PART OF THE COSTS. 3. IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT AS PER GROUND NO. 2 RAISED BY ASSESSEE BEFORE THE TRIBUNAL, THIS IS THE GRIEVANCE OF THE ASSESSEE THAT CIT(A) IS NOT JUSTIFIED IN UPHOLDING THE ASSESSMENT COMPLETED BY THE AO U/S. 144 OF IT ACT. HE FURTHER SUBMITTED THAT SIMILAR GROUND WAS RAISED BY ASSESSEE BEFORE CIT(A) ALSO AS PER GROUND NO. 2 RAISED BEFORE CIT(A). THEREAFTER HE SUBMITTED THAT IT IS NOTED BY CIT(A) IN PARA 6 OF HIS ORDER THAT REMAND REPORT WAS RECEIVED FROM AO AND HE HAS REPRODUCED THE RELEVANT PORTION OF THE SAID REMAND REPORT RECEIVED FROM THE AO DATED 13.10.2014. HE SUBMITTED THAT IN THE SAME PARA, CIT(A) HAS REPRODUCED THE RELEVANT PORTION FROM REMAND REPORT RECEIVED FROM JCIT, R-8, BANGALORE DATED 14.10.2014. THEREAFTER HE POINTED OUT THAT IN THE REMAND REPORT SUBMITTED BY JCIT, R-8, BANGALORE, IT IS STATED THAT THE AO HAS BEEN DIRECTED TO GIVE ONE MORE OPPORTUNITY BEFORE SUBMITTING THE FINAL REPORT TO CIT(A) AND IN THIS REGARD, THE AO IS SEEKING EXTENSION OF TIME FOR SUBMISSION OF REMAND REPORT. HE SUBMITTED THAT NONE OF THE REMAND REPORTS SUBMITTED BY THE AO OR JCIT, R-8, BANGALORE WAS MADE AVAILABLE TO THE ASSESSEE FOR REJOINDER. HE ALSO SUBMITTED THAT ISSUE IN RESPECT OF ASSESSEES OBJECTIONS TO THE VALIDITY OF THE ASSESSMENT ORDER PASSED BY THE AO U/S. 144 WAS NOT DECIDED BY CIT(A). HE SUBMITTED THAT THEREFORE, IN THE INTEREST OF JUSTICE, THE MATTER MAY BE RESTORED BACK TO THE FILE OF CIT(A) FOR FRESH DECISION BY WAY OF A SPEAKING AND REASONED ORDER ON THIS ASPECT. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A). ITA NO.487/BANG/2018 PAGE 3 OF 4 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST OF ALL, WE REPRODUCE PARA NO. 4 OF THE ORDER OF CIT(A) BECAUSE IN THIS PARA, THE CIT(A) HAS REPRODUCED THE GROUNDS RAISED BY ASSESSEE BEFORE HER. 4. AGGRIEVED BY THIS ORDER, APPELLANT PREFERRED AN APPEAL. THE RELEVANT PORTION OF GROUNDSOF APPEAL ARE REPRODUCED AS UNDER :- 1. THE ORDER OF THE LEARNED AO IN SO FAR AS IT IS AGAINST THE APPELLANT ISOPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS ANDCIRCUMSTANCES OF CASE. 2. THE LEARNED AO IS NOT JUSTIFIED IN COMPLETING THE ASSESSMENT U/S 144 OF THE ACT UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANTS CASE. 3. THE LEARNED AO IS NOT JUSTIFIED IN MAKING AN ADDITION OF RS.46,40,000/- AS UNEXPLAINED CASH DEPOSITS IN THE BANK ACCOUNT OF THE APPELLANT UNDER THEFACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 4. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WITH THE HON'BLE CCIT/DG,THE APPELLANT DENIES HIMSELF LIABLE TO BE CHARGED TO INTEREST ULS 234A, 234B AND234C OF THE ACT, WHICH UNDER THEFACTS AND IN THE CIRCUMSTANCES OF THEAPPELLANT'S CASE AND LEVY DESERVES TO BE CANCELLED. 5. AS PER ABOVE PARA REPRODUCED FROM THE ORDER OF CIT(A), IT IS SEEN THAT AS PER GROUND NO. 2 RAISED BY ASSESSEE BEFORE CIT(A), THIS WAS THE OBJECTION OF THE ASSESSEE THAT AO WAS NOT JUSTIFIED IN COMPLETING THE ASSESSMENT U/S. 144 OF IT ACT. THEREAFTER IN PARA 5 OF HIS ORDER, LD. CIT(A) HAS REPRODUCED THE RELEVANT PORTION OF STATEMENT OF FACTS FILED BY ASSESSEE BEFORE HER. IN PARA 6 OF HIS ORDER, LD. CIT(A) HAS REPRODUCED THE RELEVANT PORTION OF REMAND REPORT FROM AO DATED 13.10.2014 AND ALSO THE RELEVANT PORTION OF REMAND REPORT RECEIVED FROM JCIT, R-8, BANGALORE DATED 14.10.2014. THEREAFTER IN PARA NO. 7, SHE HAS DECIDED THE ISSUE ON MERIT AND THERE IS NO DECISION ON THIS ASPECT OF THE MATTER AS TO WHETHER THE ORDER PASSED BY THE AO U/S. 144 IS VALID OR NOT IN THE FACTS OF PRESENT CASE. HENCE, WE FEEL IT PROPER TO RESTORE THIS MATTER BACK TO THE FILE OF CIT(A) FOR FRESH DECISION WITH THE DIRECTION THAT SHE SHOULD FIRST DECIDE THIS ISSUE RAISED BY ASSESSEE BEFORE HER AS PER GROUND NO. 2 BY WAY OF A SPEAKING AND REASONED ORDER ITA NO.487/BANG/2018 PAGE 4 OF 4 AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES AND IF THE ASSESSEE SUCCEEDS ON THIS ASPECT, THEN NOTHING MORE REMAINS TO BE DECIDED BUT IF THE ASSESSEE FAILS ON THIS ISSUE, THEN THE ISSUE ON MERIT SHOULD BE DECIDED BY HER AFRESH BECAUSE IN OUR CONSIDERED OPINION, ISSUE ON MERIT SHOULD BE DECIDED AFTER DECISION ON TECHNICAL ASPECT. WE ORDER ACCORDINGLY. IN VIEW OF THIS DECISION, WE DO NOT MAKE ANY COMMENT ON THE ISSUE ON MERIT AT THE PRESENT STAGE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- (PAVAN KUMAR GADALE) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 16 TH APRIL, 2019. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.