Sri K Shambulinge Gowda, Mysore V. The Income Ta Officer Ward-2(2), Mysore

ITA 599/BANG/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 8693 (ITAT-BANGALORE)
• Duration Of Justice: 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 26-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GANESH R GHALE DEPT
• Assessee Lawyers: V SRINIVASAN
• Keywords: Opportunity of being heard; Set aside; Capital Gains
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-C BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER I T A NO. 599 /BANG/201 9 ASSESSMENT YEAR : 20 08 - 09 SRI K. SHAMBULINGE GOWDA, # 870, 24 TH CROSS, BEHIND L B GROUND, VIDYARANYAPURAM, MYSURU 570 008. PAN: AXJPS9603H VS. THE INCOME TAX OFFICER, WARD 2 [2], MYSURU. APPELLANT RESPONDENT ASSESSEE BY : SHRI V. SRINIVASAN, ADVOCATE REVENUE BY : SHRI GANESH R GHALE, STANDING COUNSEL FOR DEPT. DATE OF HEARING : 11 . 1 1 .2019 DATE OF PRONOUNCEMENT : 15 . 1 1 .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), MYSORE DATED 30.11.2017 FOR ASSESSMENT YEAR 2008-09. 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 DISPOSING OFF THE APPEAL EX- PARTE WITHOUT ALLOWING SUFFICIENT AND REAL OPPORTUNITY TO THE APPELLANT TO REPRESENT THE CASE AND HENCE, THE IMPUGNED ORDER PASSED REQUIRES TO BE CANCELLED. 3. THE ORDER OF RE-ASSESSMENT IS BAD IN LAW AND VOID-AB-INITIO FOR WANT OF REQUISITE JURISDICTION ESPECIALLY, THE MANDATORY REQUIREMENTS TO ASSUME JURISDICTION U/S 148 OF THE ACT DID NOT EXIST AND HAVE NOT BEEN COMPLIED WITH AND CONSEQUENTLY, THE RE-ASSESSMENT REQUIRES TO BE CANCELLED. 4. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT[A] IS NOT JUSTIFIED IN NOT DISPOSING OFF THE GROUNDS RAISED BY THE APPELLANT WITH REGARD TO THE ASSESSING A SUM-OF RS.8,80,000/- AS INCOME FROM SHORT TERM CAPITAL GAINS UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE 5. 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 ITA NO. 599/BANG/2019 PAGE 2 OF 3 INSTITUTION FEES AS PART OF THE COSTS. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT THE IMPUGNED ORDER OF LD. CIT(A) IS EX-PARTE QUA THE ASSESSEE. HE POINTED OUT THAT ON PAGE NO. 1 OF THE IMPUGNED ORDER, IT IS NOTED BY LD. CIT(A) THAT TWO DATES OF HEARING WERE FIXED BY HIM BEING 28.11.2017 AND 30.11.2017 AND THE ORDER WAS PASSED BY HIM ON 30.11.2017. HE SUBMITTED THAT UNDER THESE FACTS, IT SHOULD BE HELD THAT THE ORDER OF LD. CIT(A) IS WITHOUT GRANTING ADEQUATE OPPORTUNITY TO ASSESSEE AND THEREFORE, THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF LD. CIT(A) FOR FRESH DECISION. 4. AS AGAINST THIS, THE LD. DR OF REVENUE SUPPORTED THE ORDER OF LD. CIT(A). HE ALSO POINTED OUT THAT IN PARA NO. 3 OF THE IMPUGNED ORDER, IT IS HELD BY LD. CIT(A) THAT IT IS FOUND THAT THE ASSESSEE FAILED TO PAY AN AMOUNT EQUIVALENT TO THE AMOUNT OF ADVANCE TAX WHICH WAS PAYABLE BY HIM AS REQUIRED VIDE CLAUSE (B) OF SUB-SECTION (4) OF SECTION 249 OF THE IT ACT AND THEREFORE, IT WAS HELD BY LD. CIT(A) THAT APPEAL IS NOT ADMISSIBLE. HE SUBMITTED THAT UNDER THESE FACTS, THE APPEAL OF ASSESSEE SHOULD BE DISMISSED. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND FORCE IN THE SUBMISSIONS OF LD. AR OF ASSESSEE THAT THE IMPUGNED ORDER IS PASSED BY LD. CIT(A) WITHOUT GRANTING ADEQUATE OPPORTUNITY OF BEING HEARD TO ASSESSEE. IN RESPECT OF THIS FINDING OF LD. CIT(A) THAT THERE IS VIOLATION OF PROVISIONS OF SECTION 249 (4) (B), I WOULD LIKE TO OBSERVE THAT THIS ASPECT SHOULD ALSO BE DECIDED BY LD. CIT(A) AFRESH AFTER ALLOWING ADEQUATE OPPORTUNITY OF BEING HEARD TO ASSESSEE. SINCE THIS WAS NOT DONE, I FEEL IT PROPER TO SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECISION ON ALL ASPECTS AFTER ALLOWING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. I ORDER ACCORDINGLY. IN VIEW OF THIS DECISION, NO ADJUDICATION ON MERIT IS CALLED FOR 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/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 15 TH NOVEMBER, 2019. /MS/ ITA NO. 599/BANG/2019 PAGE 3 OF 3 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.