A. Bhadradevi, Bangalore V. Assistant Commissioner of Income Tax,Circle 1(1)(1), Bangalore

ITA 693/BANG/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4993 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 08-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: TSHERING ONGDA; DILIP JUNIOR STANDING
• Assessee Lawyers: B T SHETTY
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 693 / BANG/201 9 ASSESSMENT YEAR : 20 1 3 - 1 4 SMT. A. BHADRADEVI, #343, F1, DAIWIK GOKUL, 14 TH CROSS, 7 TH MAIN, 2 ND BLOCK, JAYANAGARA, BANGALORE 560 011. PAN: AHJPD8407A VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1 (1) (1), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI B.T. SHETTY, CA RESPONDENT BY : SHRI TSHERING ONGDA, JCIT (DR) & SHRI DILIP, JUNIOR STANDING COUNSEL DATE OF HEARING : 14 .0 5 .201 9 DATE OF PRONOUNCEMENT : 16. 0 5 .201 9 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 EX-PARTE ORDER OF LD. CIT (A)-1,BANGALORE DATED 12.02.2019 FOR ASSESSMENT YEAR 2013-14. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE ORDER OF THE LEARNED COMMISSIONER (APPEALS), IS NOT JUSTIFIED IN LAW AND ONFACTS AND CIRCUMSTANCES OF THE CASE. 2. AS REGARDS TREATING INTEREST OF RS.13,32,744/- UNDER THE HEAD 'INCOMEFROM OTHER SOURCE': 2.1.THE LOWER AUTHORITIES ARE NOT JUSTIFIED IN TREATING RS.13,32,744/- AS THEINCOME BY WAY OF INTEREST IN THE HANDS OF THE APPELLANT UNDER THE HEAD'INCOME FROM OTHER SOURCE', WHEN THE APPELLANT HAD NO RIGHT TO RECEIVE THESAME DURING THE IMPUGNED YEAR 2.2.THE LOWER AUTHORITIES HAVE FAILED TO APPRECIATE THAT WHEN THE APPELLANT DOESNOT HAVE RIGHT TO CLAIM THE SALE CONSIDERATION ITSELF, HE ALSO DOES NOT HAVERIGHT TO CLAIM THE INTEREST ARISING OUT OF SUCH SALE CONSIDERATION. 2.3. WITHOUT PREJUDICE TO THE ABOVE, THE LOWER AUTHORITIES HAVE FAILED TO APPRECIATETHAT MERE CREDIT OF AMOUNT IN FIXED DEPOSITS ACCOUNTS KEPT UNDER THE ESCROWWOULD NOT RESULT IN ACCRUAL UNTIL THERE IS RIGHT TO RECEIVE THE SAME. ITA NO.693/BANG/2019 PAGE 2 OF 3 2.4.THE LOWER AUTHORITIES FAILED TO CONSIDER THAT, THE APPELLANT HAS NOT RECEIVEDTHE INTEREST ACCRUED ON THE ESCROW ACCOUNT TO HIS DISPOSAL, AND THE APPELLANTIS AN INDIVIDUAL FOLLOWING CASH METHOD OF ACCOUNTING, IT MEANS NO INCOMEEARNED BY HER IN RESPECT OF THE TAX CREDIT APPEARED IN THE 26AS TO HIS PANDURING THE ASSESSMENT YEAR 2013-14. 3. THE LEARNED COMMISSIONER (APPEALS) IS NOT JUSTIFIED IN UPHOLDING THE ACTION OFTHE LEARNED ASSESSING OFFICER IN LEVYING OF INTEREST OF RS.24,216/- UNDER SECTION234A, ON THE IMPUGNED ADDITIONS, WHEN THE VERY ADDITIONS ARE NOT JUSTIFIED. 4. THE LEARNED COMMISSIONER (APPEALS) IS NOT JUSTIFIED IN UPHOLDING THE ACTION OFTHE LEARNED ASSESSING OFFICER IN LEVYING OF INTEREST OF RS. 1,09,692/- UNDERSECTION 2348, ON THE IMPUGNED ADDITIONS, WHEN THE VERY ADDITIONS ARE NOTJUSTIFIED. FORTHE ABOVE GROUNDS AND FOR SUCH OTHER GROUNDS WHICH MAY BE ALLOWED BY THEHONOURABLE MEMBERS TO BE URGED AT THE TIME OF HEARING, IT IS PRAYED THAT THE AFORESAIDAPPEAL BE ALLOWED. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT THE ORDER PASSED BY THE LD. CIT(A) IS EX-PARTE QUA THE ASSESSEE. HE SUBMITTED THAT IT IS NOTED BY CIT(A) IN PARA 2 OF HIS ORDER THAT NOTICE OF HEARING WAS ISSUED BY HIM TO THE ASSESSEE FIXING THE HEARING ON 11.02.2019 BUT THE SAID NOTICE HAS BEEN RETURNED UN-SERVED BY THE INDIA POST WITH THE REMARKS ADDRESSEE LEFT WITHOUT INSTRUCTION. HE SUBMITTED THAT THIS IS TRUE THAT DURING THIS PERIOD, THE ASSESSEE WAS NOT AVAILABLE AT THIS ADDRESS. IN REPLY TO QUERY OF BENCH AS TO WHETHER THE ASSESSEE HAS INTIMATED ABOUT ANY NEW ADDRESS, HE SUBMITTED THAT AT THAT POINT OF TIME, THE ASSESSEE WAS NOT HAVING ANY ADDRESS AND THEREFORE, THE SAME COULD NOT BE INTIMATED TO CIT(A) BUT NOW THE ASSESSEE HAS TAKEN RESIDENCE ON RENT AS PER ADDRESS GIVEN IN FORM NO. 36 AND THEREFORE, IN THE INTEREST OF JUSTICE, THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF CIT(A) FOR DECISION ON MERIT AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HE SUBMITTED THAT IF THIS IS DONE, THE NOTICE CAN BE SENT AT THE ADDRESS GIVEN BY ASSESSEE IN FORM NO. 36. THE ASSESSEE WILL MAKE DUE COMPLIANCE. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A). 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND THAT THIS IS TRUE AND IT IS NOTED IN THE ORDER OF CIT (A) ALSO THAT THE NOTICE OF HEARING WAS NOT SERVED ON THE ITA NO.693/BANG/2019 PAGE 3 OF 3 ASSESSEE. THIS IS ADMITTED BY LD. AR OF ASSESSEE THAT ASSESSEE WAS NOT AVAILABLE AT THIS ADDRESS DURING THE RELEVANT TIME BECAUSE OF SOME PROBLEMS BUT NOW, THE ASSESSEE IS HAVING A NEW ADDRESS AS UNDER. SMT. A. BHADRADEVI, #343, F1, DAIWIK GOKUL, 14 TH CROSS, 7 TH MAIN, 2 ND BLOCK, JAYANAGARA, BANGALORE 560 011. PAN: AHJPD8407A 5. IN THE INTEREST OF JUSTICE, I FEEL IT PROPER TO RESTORE THE MATTER BACK TO THE FILE OF CIT (A) FOR FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES AND THEREFORE, 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 16 TH MAY, 2019. /MS/ 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.