Smt.Muniswamy Ratnamma , Bangalore V. Assistant Commissioner of Income Tax Circle-7(2)(1), Bangalore

ITA 566/BANG/2018

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5419 (ITAT-BANGALORE)
• Duration Of Justice: 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 28-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L V BHASKAR REDDY
• Assessee Lawyers: SHREEHARI KUTSA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 566 / BANG/201 8 ASSESSMENT YEAR : 20 1 3 - 1 4 SMT. MUNISWAMY RATNAMMA, NO. 170, 6 TH CROSS, 10 TH BLOCK, 2 ND STAGE, NAGARABHAVI, BANGALORE 560 072. PAN: ACUPR5154L VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 7 (2) (1), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI SHREEHARI KUTSA , CA RESPONDENT BY : SHRI L.V. BHASKAR REDDY, ADDL. CIT (DR) DATE OF HEARING : 2 3 . 0 3 .2018 DATE OF PRONOUNCEMENT : 23 . 0 3 .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)-7, BANGALORE DATED 26.12.2017 FOR ASSESSMENT YEAR 2013-14. 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 EVI DENCE, PROBABILITIES AND THE FACTS AND CIRCUMSTANCES IN THE APPELLANT'S CASE. 2. THE APPELLANT DENIES ITSELF LIABLE TO BE ASSESSE D TO TAX ON A TOTAL INCOME AS DETERMINED BY THE LEARNED AO AS AGAINST T HE TOTAL INCOME AS DECLARED BY THE APPELLANT ON THE FACTS AND CIRCU MSTANCES OF THE CASE. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS NOT JUSTIFIED IN DISMISSING THE APPEAL ON TECHNICALITIES, WITHOUT CONSIDERING THE WRITTEN SUBMISSIONS FILED BY THE APPELLANT ON THE F ACTS AND CIRCUMSTANCES OF THE CASE. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE GRANTED ANOTHER OPPORTUNITY OF HEARING ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT NOT TO HAVE DISMISSED THE APPEAL FOR MERE NON-FILING OF AP PEAL ELECTRONICALLY ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. 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. ITA NO.566/BANG/2018 PAGE 2 OF 3 7. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT T O HAVE ADJUDICATED THE MATTER AND HELD THAT THE ASSESSMENT PROCEEDINGS CONDUCTED BY THE LEARNED ASSESSING OFFICER AND CONS EQUENT ORDER OF ASSESSMENT PASSED BY THE LEARNED ASSESSING OFFICER IS IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND THEREFORE NOT SUS TAINABLE IN LAW ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 8. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT T O HAVE ADJUDICATED THE MATTER AND HELD THAT THE LEARNED AS SESSING OFFICER HAVING FAILED TO ISSUE THE STATUTORY NOTICE UNDER S ECTION 143(2) OF THE ACT, THE PROCEEDINGS ARE NOT SUSTAINABLE ON THE FAC TS AND CIRCUMSTANCES OF THE CASE. 9. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT T O HAVE ADJUDICATED THE MATTER AND HELD THAT THE LEARNED AS SESSING OFFICER HAVING FAILED TO DISPOSE THE OBJECTIONS FILED BY TH E APPELLANT ON THE ISSUE OF NON-GRANTING OF SUFFICIENT TIME AND CONDUC TING HEARING AT THE FAG END OF THE YEAR AND ON THE ISSUE OF NON-ISSUE O F STATUTORY NOTICES, THE PROCEEDINGS ARE RENDERED BAD IN LAW FOR THIS RE ASON ALSO, ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 10. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE ADJUDICATED THE MATTER AND HELD THAT THE LEARNED AS SESSING OFFICER HAVING FAILED TO SEND THE ORDER OF ASSESSMENT ON OR BEFORE THE 31/03/2016, THE ORDER IS RENDERED INVALID AND UNSUS TAINABLE IN LAW ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 11. WITHOUT PREJUDICE, THE LEARNED AO FAILED TO GIV E TDS CREDIT AVAILABLE TO THE CREDIT OF THE APPELLANT ON THE FAC TS AND CIRCUMSTANCES OF THE CASE. 12. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER W ITH THE HON'BLE CHIEF COMMISSIONER OF INCOME TAX/DIRECTOR GENERAL O F INCOME TAX, THE APPELLANT DENIES ITSELF LIABLE TO BE CHARGED TO INTEREST UNDER SECTIONS 234A, 234B AND 234C OF THE ACT WHICH UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE DESERVES TO BE CANCELLED. THE CALCULATION OF INTEREST UNDER SECTIONS 234A, 234B AND 234C IS NOT IN ACCORDANCE WITH LAW AS THE RATE, AMOUNT AND METHOD FOR CALCULA TING INTEREST IS NOT DISCERNIBLE FROM THE ORDER OF ASSESSMENT. 13. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, DELET E OR SUBSTITUTE ANY OF THE GROUNDS URGED ABOVE. 14. IN THE VIEW OF THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF THE HEARING OF THE APPEAL, THE APPELLAN T PRAYS THAT THE APPEAL MAY BE ALLOWED IN THE INTEREST OF JUSTICE AN D EQUITY. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR O F ASSESSEE THAT THE LAST DATE OF HEARING FIXED BY CIT (A) WAS ON 22.12.2017 FOR WHIC H THE NOTICES WERE SENT BY SPEED POST TO THE ASSESSEE AND THE AR AND NOTICES W ERE DULY SERVED ALSO. HE SUBMITTED THAT THE ASSESSEE DOES NOT DISPUTE THE SE RVICE OF NOTICE IN RESPECT OF HEARING FIXED ON 22.12.2017 BUT THE LD. AR OF ASSES SEE COULD NOT APPEAR BECAUSE HIS FATHER WAS HOSPITALISED BECAUSE OF HEAR T AILMENT DURING THAT PERIOD AND SUBSEQUENTLY, HE HAS FILED WRITTEN SUBMISSIONS BEFORE THE LD. CIT (A) ON ITA NO.566/BANG/2018 PAGE 3 OF 3 28.12.2017 COPY OF WHICH IS FURNISHED ALONG WITH WR ITTEN SUBMISSIONS FILED BEFORE THE TRIBUNAL. BUT THE IMPUGNED ORDER WAS PA SSED BY CIT (A) ON 26.12.2017 AND THEREFORE, THE SAME WERE NOT AVAILAB LE BEFORE CIT (A) WHEN THE IMPUGNED ORDER WAS PASSED BY HIM. HE SUBMITTED THA T IN THE INTEREST OF JUSTICE AND UNDER THE PRESENT FACTS, THE MATTER SHOULD BE R ESTORED BACK TO THE FILE OF CIT(A) FOR FRESH DECISION AFTER PROVIDING REASONABL E OPPORTUNITY OF BEING HEARD TO ASSESSEE. THE LD. DR OF REVENUE SUPPORTED THE O RDER OF CIT(A). 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND I FI ND FORCE IN THE SUBMISSIONS OF LD. AR OF ASSESSEE THAT BECAUSE OF THE SUDDEN ILLN ESS OF THE FATHER OF THE LD. AR OF ASSESSEE, HE COULD NOT APPEAR BEFORE CIT(A) O N THE APPOINTED DATE OF HEARING AND THEREFORE, NO EFFECTIVE OPPORTUNITY OF HEARING WAS AVAILABLE TO THE ASSESSEE AND CONSIDERING THESE FACTS AND IN THE INT EREST OF JUSTICE, I SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECISION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. 5. IN VIEW OF THIS DECISION, NO ADJUDICATION IS CAL LED FOR ON MERIT OF THE CASE AT THIS STAGE. HENCE I DO NOT MAKE ANY COMMENT ON THE MERI T OF THE CASE. 6. 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 23 RD MARCH, 2018. /MS/ 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.