Appeal Details
Counselvise Citation
[2018] 125 COUNSELVISE.COM (IT) 7693 (ITAT-BANGALORE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
4 month(s) 14 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
13-07-2018
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
A
Assessment Year
2014-2015
Appeal Filed On
28-02-2018
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL SMC-A BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 565 / BANG/201 8 ASSESSMENT YEAR : 20 14 - 15 SHRI RANGANATHA G.S., NO. 120, HOODI APARTMENTS, CUNNINGHAM ROAD, BANGALORE 560 052. PAN: AIEPG1800C VS. THE INCOME TAX OFFICER, WARD 5 (3) (2), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI SHREEHARI KUTSA , CA RESPONDENT BY : SHRI S. VENKATESH, JCIT (DR) DATE OF HEARING : 0 4 .0 7 .2018 DATE OF PRONOUNCEMENT : 13 .0 7 .2018 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)-5, BANGALORE DATED 22.01.2018 FOR ASSESS MENT YEAR 2014-15. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE ORDER OF THE LEARNED COMMISSIONER PASSED UND ER SECTION 250 OF THE ACT IS OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDEN CE, PROBABILITIES AND THE FACTS AND CIRCUMSTANCES IN THE APPELLANT'S CASE . 2. THE APPELLANT DENIES TO BE ASSESSED TO TAX ON TO TAL INCOME AS DETERMINED BY THE LEARNED AO AS AGAINST THE TOTAL I NCOME REPORTED BY THE APPELLANT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS NOT JUSTIFIED IN UPHOLDING THE VALIDITY OF ASSESSMENTS INSOFAR AS WH EN THE FACT OF NON- SERVICE OF MANDATORY NOTICE U/S 143(2) IS UNDISPUTE D ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT T O HAVE APPRECIATED THAT THE DEPARTMENT CANNOT TAKE SHELTER UNDER SECTION 292BB ON THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO. 565/BANG/2018 PAGE 2 OF 4 5. THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED I N HOLDING THAT THE ADDITION OF RS.5,57,500/- COULD NOT BE CHALLENGED B Y SUBMISSION OF NECESSARY EVIDENCES WHEN THE SAME WAS ALREADY SUBMI TTED ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE HELD THAT THE APPELLANT HAS SUFFICIENT AND ADEQUATE SOURCES OF MONEY TO DEPOSIT THE CASH OF RS.5,57,500/- AND MORE ON THE F ACTS AND CIRCUMSTANCES OF THE CASE. 7. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER OF INTEREST UNDER SECTION 234B AND 234D OF THE ACT, THE LEVY IS UNSUSTAINABLE IN LAW AND ON THE FACTS OF THE CASE. 8. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, DELETE OR SUBSTITUTE ANY OF THE GROUNDS URGED ABOVE. 9. IN THE VIEW OF THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF THE HEARING OF THE APPEAL, THE APPELLANT PR AYS THAT THE APPEAL MAY BE ALLOWED IN THE INTEREST OF JUSTICE AND EQUIT Y. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR O F ASSESSEE THAT ON PAGE NO. 4 OF THE ASSESSMENT ORDER, THE AO HAS NOTED THAT THE NOT ICE U/S. 143(2) OF IT ACT WAS SENT TO THE ASSESSEE ON 08.09.2015 ON AN ADDRES S NOTED THERE. HE FURTHER SUBMITTED THAT IT IS ALSO NOTED BY THE AO ON THE SA ME PAGE OF THE ASSESSMENT ORDER THAT THE ABOVE NOTICE WAS RETURNED UNSERVED B Y THE POSTAL AUTHORITIES. HE POINTED OUT THAT AFTER THIS, THE AO HAS NOTED ON THE SAME PAGE OF THE ASSESSMENT ORDER THAT THEREAFTER, THE NOTICE U/S. 1 43(2) DATED 07.09.2015 WAS SENT THROUGH EMAIL OF THE ASSESSEE ON 24.09.2015 AN D HE HAS NOTED THAT ON THE SAID EMAIL ADDRESS OF THE ASSESSEE, OTHER NOTICES W ERE ALSO SENT. HE SUBMITTED THAT ALTHOUGH OTHER NOTICES WERE RECEIVED BY THE ASSESSEE BUT THE NOTICE U/S 143 (2) WAS NOT RECEIVED BY THE ASSESSEE . HE SUBMITTED THAT THIS FACT HAS TO BE EXAMINED AS TO WHETHER, IN FACT ANY NOTICE U/S 143 (2) WAS SENT BY AO TO ASSESSEE IN EMAIL OR NOT. HE SUBMITTED TH AT IF IT IS FOUND THAT IN FACT ANY SUCH NOTICES WAS SENT BY AO TO ASSESSEE BY EMAI L OF ASSESSEE THEN ALSO, IT HAS TO BE SEEN THAT WHETHER SUCH SERVICE OF NOTI CE U/S. 143(2) BY EMAIL IS VALID OR NOT. IN REPLY, IT WAS SUBMITTED BY LD. DR OF REVENUE THAT AO HAS NOTED ON NEXT PAGE OF THE ASSESSMENT ORDER I.E. PAGE 5 TH AT SOME EMAIL NOTICES WERE SENT ON 10.09.2016, 07.10.2016 AND 25.11.2016 AND T HE SAID NOTICES WERE RECEIVED BY THE ASSESSEE BECAUSE REPLY HAS BEEN FIL ED BY THE ASSESSEE. IT IS ITA NO. 565/BANG/2018 PAGE 3 OF 4 SUBMITTED THAT THIS GOES TO SHOW THAT EMAIL ADDRESS ON WHICH NOTICE WAS SENT BY AO TO ASSESSEE U/S. 143(2) IS CORRECT EMAIL ID O F ASSESSEE AND THEREFORE, THERE IS NO MERIT IN THE CLAIM OF THE ASSESSEE THAT THE ASSESSEE HAS NOT RECEIVED ANY NOTICE U/S. 143(2) BY EMAIL. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND THAT THIS IS ADMITTED FACTUAL POSITION THAT THE PAPER NOTICE SENT BY THE AO U/S. 143(2) ON 08.09.2015 WAS NOT SERVED ON THE ASSESSEE AND THIS IS THE SUBMISSION O F THE ASSESSEE THAT THE ADDRESS ON WHICH THIS NOTICE WAS SENT IS NOT CORREC T ADDRESS OF THE ASSESSEE. REGARDING THIS ASPECT OF THE MATTER THAT NOTICE U/S . 143(2) WAS SENT BY THE AO ON 24.09.2015 THROUGH EMAIL, IT HAS TO BE EXAMINED AS TO WHETHER ANY SUCH NOTICE U/S. 143(2) WAS SENT BY THE AO ON THIS DATE I.E. 24.09.2015. THERE IS NO FINDING OF CIT (A) ON THIS ASPECT OF THE MATTER AND HENCE, I FEEL IT PROPER TO RESTORE THE MATTER BACK TO THE FILE OF CIT(A) FOR F RESH DECISION AFTER FINDING OUT AS TO WHETHER ANY SUCH NOTICE WAS SENT BY THE AO TO ASSESSEE ON 24.09.2015 THROUGH EMAIL. IF IT IS FOUND THAT SUCH NOTICE U/S . 143(2) WAS IN FACT SENT BY THE AO TO ASSESSEE BY EMAIL WITHIN THE PRESCRIBED TIME U/S. 143(2) THEN THIS ASPECT SHOULD ALSO BE LOOKED INTO AS TO WHETHER SUCH SERVI CE OF NOTICE IS A VALID SERVICE OR NOT. THE CIT(A) SHOULD PASS NECESSARY O RDER AS PER LAW AS PER ABOVE DISCUSSION AFTER PROVIDING ADEQUATE OPPORTUNI TY OF BEING HEARD TO BOTH SIDES. 5. IN VIEW OF THIS DECISION, NO ADJUDICATION IS CAL LED FOR REGARDING THE MERIT OF THE CASE 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 DA TE MENTIONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 13 TH JULY, 2018. /MS/ ITA NO. 565/BANG/2018 PAGE 4 OF 4 COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.
