K Shahanawaz Khan , Bangalore V. Assistant Commissioner of Income TAx Circle-1(3)(1), Bangalore

ITA 598/BANG/2018

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5477 (ITAT-BANGALORE)
• Duration Of Justice: 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 02-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L V BHASKAR REDDY
• 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. 598 / BANG/201 8 ASSESSMENT YEAR : 20 08 - 09 SHRI K. SHAHANAWAZ KHAN, NO. 12/1, VARTHUR ROAD, NAGAWARAPALYA, C.V. RAMAN NAGAR, BANGALORE 560 093. PAN: ABFPK0426N VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1 (3) (1), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SMT. SUMAN LUNKAR, CA RESPONDENT BY : SHRI L.V. BHASKAR REDDY, ADDL. CIT (DR) DATE OF HEARING : 20 . 0 3 .2018 DATE OF PRONOUNCEMENT : 20 . 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) 2, BANGALORE DATED16.01.2018 FOR ASSESSMEN T YEAR 2008-09. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE LEARNED ASSISTANT COMMISSIONER OF INCOME TAX , HAD ERRED IN PASSING THE ORDER IN THE MANNER PASSED BY HIM AND T HE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN C ONFIRMING THE SAME. THE ORDER PASSED IS BAD IN LAW AND AGAINST TH E PRINCIPLES OF NATURAL JUSTICE AND IS REQUIRED TO BE QUASHED IN TO TO. 2. THE LEARNED CIT(A) HAS ERRED IN DISMISSING THE A PPEAL FILED BY THE APPELLANT HOLDING THAT THE APPELLANT IS NOT INTERES TED IN PURSUING THE APPEAL AS THE APPELLANT DID NOT RESPOND TO THE NOTI CES OF HEARING ISSUED, THE ACTION OF CIT(A) PASSING THE ORDER EXPA RTE BEING BAD IN LAW AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE M AKES THE APPELLATE ORDER BAD IN LAW AND SUCH ORDER IS LIABLE TO BE QUA SHED. 3.1 IN ANY CASE, THE LEARNED ASSESSING OFFICER HAD ERRED IN MAKING AN ADDITION OF RS. 5,18,282/- TO THE INCOME OF THE APP ELLANT. THERE IS NO DISCREPANCY IN BANK ACCOUNT AT ALL. ALL THE TRANSAC TIONS IN BANK ITA NO. 598/BANG/2018 PAGE 2 OF 3 ACCOUNT ARE EXPLAINABLE. HENCE THE ADDITION BEING E RRONEOUS IS TO BE DELETED. 3.2 IN ANY CASE THE ADDITION AS MADE IS ERRONEOUS A ND EXCESSIVE. 3.3 THE VARIOUS OBSERVATIONS / CONCLUSIONS DRAWN MA DE DURING THE COURSE OF ASSESSMENT PROCEEDINGS ARE CONTRARY TO AV AILABLE FACTS AND LAW ARE TO BE DISREGARDED. 4. THE APPELLANT DENIES THE LIABILITY TO PAY INTERE ST U/S 234B AND 234C OF THE ACT. THE INTEREST HAVING BEEN LEVIED ERRONEO USLY IS TO BE DELETED. 5. IN VIEW OF THE ABOVE AND ON OTHER GROUNDS TO BE ADDUCED AT THE TIME OF HEARING, THAT THE ORDER AS PASSED BY ASSESSING O FFICER BE QUASHED OR AT LEAST THE ADDITION AS MADE BE DELETED AND THE INTEREST LEVIED BE ALSO DELETED. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR O F ASSESSEE THAT THE IMPUGNED ORDER OF CIT(A) IS EX-PARTE QUA THE ASSESSEE. SHE ALSO SUBMITTED THAT IN PARA 1 ON PAGE 2 OF THE ORDER OF CIT(A), IT IS STATED BY C IT(A) THAT THREE NOTICES WERE ISSUED FOR HEARING ON 27.11.2017, 21.12.2017 AND 16 .01.2018 AND NO ONE APPEARED FOR HEARING AND THE ASSESSEE HAD NEITHER R EPLIED NOR APPLIED FOR ANY ADJOURNMENT. SHE SUBMITTED THAT THIS OBSERVATION O F THE CIT(A) IS NOT FACTUALLY CORRECT BECAUSE AS PER PAGES 16 AND 17 OF PAPER BOO K, THE ASSESSEE HAS MADE APPLICATION FOR ADJOURNMENT ON 27.11.2017 AND 21.12.2017 AND IN RESPECT OF HEARING FIXED ON 16.01.2018, SHE SUBMITT ED THAT THE ORDER IS PASSED BY CIT(A) ON THE SAME DATE WITHOUT DECIDING THE ISS UE ON MERIT. SHE SUBMITTED THAT EVEN IF NO ONE APPEARED BEFORE CIT(A) ON 16.01 .2018 THEN ALSO, HE SHOULD HAVE DECIDED THE ISSUE ON MERIT. THE LD. DR OF REV ENUE SUPPORTED THE ORDER OF CIT(A). 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND FORCE IN THE SUBMISSION OF LD. AR OF ASSESSEE THAT THIS IS NOT CORRECT ON THE PART OF CIT(A) TO SAY THAT NO ADJOURNMENT REQUEST IS FILED IN RESPECT OF HEARING FIXED ON 27.11.2017 AND 21.12.2017. THIS CONTENTION OF LD. AR OF ASSESSEE IS ALSO HAVING FORCE THAT EVEN IF NO ONE APPEARED ON 16.01.2018, THE CIT(A) S HOULD HAVE DECIDED THE ISSUE ON MERIT INSTEAD OF DISMISSING THE APPEAL IN LIMINE BY FOLLOWING THE TRIBUNAL ORDER RENDERED IN THE CASE OF CIT VS. MULT IPLAN INDIA LTD. AS REPORTED ITA NO. 598/BANG/2018 PAGE 3 OF 3 IN 38 ITD 320 (DEL). UNDER THESE FACTS, I SET ASID E THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO ITS FILE FOR FRESH DECIS ION AFTER PROVIDING ADEQUATE OPPORTUNITY 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 THIS STAGE AND HENCE I DO NOT MAKE ANY COMM ENT ON THE MERIT 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 20 TH 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.