ITO, Kolar V. Sri D.A. Lakshminarayana Chetty, KGF

ITA 581/BANG/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0641 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2009
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 08-06-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JACINTA ZIMIK VASHAI
• Assessee Lawyers: R CHANDRASHEKAR
• Keywords: TDS
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBE R AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ITA NO.581/BANG/2009 ASSESSMENT YEAR : 2005-06 THE INCOME TAX OFFICER, WARD-2, KOLAR. : APPELLANT VS. SHRI D.A. LAKSHMINARAYANA CHETTY, PANCHAVATI, ROBERTSONPET, K.G.F. : RESPONDENT APPELLANT BY : SMT. JACINTA ZIMIK VASHAI RESPONDENT BY : SHRI R. CHANDRASHEKAR O R D E R PER A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-V, FOR THE ASSESSMENT YEAR 2005-06 IN THE CA SE OF D.A.LAKSHMINARAYANA CHETTY, AN INDIVIDUAL. 2. THE REVENUE HAS RAISED FOUR GROUNDS, OUT OF WHIC H, GROUND NOS: 1 AND 4 ARE GENERAL IN NATURE AND SINCE NO SPECIFIC I SSUES INVOLVED, THEY DO NOT SURVIVE FOR ADJUDICATION. IN THE REMAINING GRO UNDS, THE ESSENCE AND SUBSTANCE OF THE ISSUE IS LARGELY CONFINED TO THAT THE CIT(A) WAS NOT ITA NO.581/BANG/09 PAGE 2 OF 4 JUSTIFIED IN ADMITTING THE NEW EVIDENCE AND ON THE BASIS OF WHICH HE HAD DELETED THE ADDITION WITHOUT DUE VERIFICATION. 3. THE AO, IN THE ABSENCE OF COMPLIANCE TO THE NOTICE U/S 142(1) OF THE ACT AND ALSO A LETTER THE LINES OF THE PROPOSED A SSESSMENT PURPORTED TO HAVE BEEN SENT ON 6/12/2007, SHE WENT AHEAD TO CONC LUDE THE ASSESSMENT EX-PARTE U/S 144 OF THE ACT WHEREBY BRINGING TO TAX THE ENTIRE SUM OF RS.12.5 LAKHS WHICH WAS CREDITED TO THE BANK ACCOUN T OF THE ASSESSEE UNDER THE HEAD INCOME FROM OTHER SOURCES. 4. AGGRIEVED, THE ASSESSEE HAD APPROACHED THE CIT ( A) FOR RELIEF. AFTER DUE CONSIDERATION OF THE ASSESSEES SUBMISSIO N, THE LD. CIT (A) HAD OBSERVED THUS - 6IT IS SEEN FROM THE SUBMISSIONS AND STATEME NT OF AFFAIRS FILED BY THE APPELLANT THAT THE APPELLANT H AS FILED RETURN OF INCOME ON 23.11.05 SHOWING INCOME OF RS.280170/- THE APPELLANT PAID TAX BY WAY OF TDS, ADVANCE-TAX ON 14.12.02 AND ON 15.3.05. THE AO WAS ASKED TO SEND REMAND REPORT LATEST BY 28 .8.08, BUT TILL TODAY NO SUCH REPORT IS RECEIVED. THE APPEAL COULD NOT BE DISPOSED OFF FOR WANT OF REMAND REPORT FROM THE AO. NOW, I HAVE TO DECIDE ON MERITS OF THE CASE. IN VIEW OF THE FACT OF THE CASE, I AM OF THE OPINION THAT THE AO SHOULD ACCEPT THE RETURN INCOME SHOWN BY THE APPELLANT. NO REASON HAS BEEN ARRIVED BY THE AO FO R NOT ACCEPTING THE RETURN FILED BEFORE THE ISSUE OF NOTICE U/S 142 (1), WHEN THE SAME WAS LYING WITH THE AO. I, THEREFORE, DIRECT TO ACC EPT THE INCOME AS SHOWN BY THE APPELLANT. THE APPELLANTS GROUND SUC CEEDS AND HE GETS RELIEF ACCORDINGLY. 5. NOT SATISFIED WITH THE FINDING OF THE CIT (A), T HE REVENUE HAS COME UP WITH THE PRESENT APPEAL. 5.1. BOTH THE PARTIES WERE DULY HEARD. ON A CURSO RY VERIFICATION OF THE EVIDENCE PRODUCED DURING THE COURSE OF HEARING BY T HE LD. A.R, WE FIND THAT ITA NO.581/BANG/09 PAGE 3 OF 4 THE ASSESSEE HAD, IN FACT, FURNISHED HIS RETURN OF INCOME FOR THE AY UNDER DISPUTE, ADMITTING A TOTAL INCOME OF RS.2,80,170/- DULY PAYING ADVANCE-TAX, TAX U/S 140A OF THE ACT ETC. WAY BACK IN NOVEMBER, 2005 ITSELF WHICH HAS BEEN DULY ACKNOWLEDGED BY THE DEPARTMENT. SUCH BEI NG THE POSITION, THE AO HAD RESORTED TO ISSUE A NOTICE U/S 142(1) WHICH WAS ALLEGED TO HAVE BEEN FOLLOWED BY A LETTER ON 6/12/2007 PROPOSING TO BRING TO TAX THE ENTIRE SUM OF RS.12.5 LAKHS CREDITED IN THE ASSESSEES BAN K ACCOUNT. SUBSEQUENTLY, SHE WENT AHEAD WITH THE SAID PROPOSAL AND CONCLUDED THE ASSESSMENT U/S 144 OF THE ACT. 5.1.1. REVERTING BACK, CONSIDERING THE OVER ALL FA CTS AND CIRCUMSTANCES OF THE ISSUE AND ALSO IN THE INTERES T OF JUSTICE AND FAIR PLAY, WE ARE OF THE UNANIMOUS VIEW THAT THE MATTER SHOULD BE REMITTED BACK ON THE FILE OF THE AO TO ADDRESS THE GRIEVANCE OF THE ASSESSEE AFRESH. ACCORDINGLY, THE ISSUE IS RESTORED ON THE FILE OF T HE AO WITH A SPECIFIC DIRECTION TO LOOK INTO THE DOCUMENTARY EVIDENCE/PARTICULARS OF B ANK STATEMENTS (WHICH SHALL BE FURNISHED BY THE ASSESSE E) IN A COMPREHENSIVE MANNER AND TO DECIDE THE ISSUE IN ACC ORDANCE WITH THE PROVISIONS OF THE ACT, AFTER AFFORDING A REASONABLE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. IN THE MEANWHILE, THE ASS ESSEE, THROUGH HIS A.R, IS ADVISED TO FURNISH ALL THE RELEVANT PARTICU LARS BACKED WITH DOCUMENTARY EVIDENCES AT HIS POSSESSION WHICH WOULD FACILITATE THE AO TO CARRY OUT THE DIRECTION OF THIS BENCH, EXPEDITIOUSL Y. 6. IN THE RESULT , THE REVENUES APPEAL IS TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ITA NO.581/BANG/09 PAGE 4 OF 4 PRONOUNCED IN THE OPEN COURT ON THIS 20 TH DAY OF NOVEMBER, 2009. SD/- SD/- (SHAILENDRA KUMAR YADAV ) (A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEM BER BANGALORE, DATED, THE 20 TH NOVEMBER, 2009. DS/- COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE (1+1) BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.