Shri. T. Aswanthnarayana, Bangalore V. The Income Tax Officer, Ward-3(2)(4), Bangalore

ITA 759/BANG/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4991 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 11-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: TSHERING ONGDA
• Keywords: Opportunity of being heard; Additional evidence; Set aside
• Section: 54F; 234B; 143(2); 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-A BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 759 / BANG/201 9 ASSESSMENT YEAR : 20 1 2 - 1 3 SHRI T. ASWATHNARAYANA, UTTARI VILLAGE, UTTARAHALLI HOBLI, KAGGLIPURA POST, KANAKAPURA MAIN ROAD, BANGALORE 560 082. PAN: AURPA7699E VS. THE ITO, WARD 3 [2] [4], BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI NARENDRA SHARMA, ADVOC A TE RESPONDENT BY : SHRI TSHERING ONGDA, JCIT (DR) DATE OF HEARING : 1 5 .0 5 .201 9 DATE OF PRONOUNCEMENT : 31 .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 ORDER OF LD. CIT (A)-3, BANGALORE DATED 11.02.2019 FOR ASSESSMENT YEAR 2012-13. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IN SO FAR AS IT IS AGAINST THE APPELLANT IS OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. 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 ORDER OF RE-ASSESSMENT REQUIRES TO BE CANCELLED. 3. THE LEARNED AO IS NOT JUSTIFIED IN COMPLETING THE ASSESSMENT U/S.144 OF THE ACT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THE LD. CIT (A) HAS ERRED IN REFUSING TO PROVIDE THE REASONS AS RECORDED FOR REOPENING THE APPELLANT'S CASE U/S. 147 OF THE ACT AND AS SUCH NOT FOLLOWED THE PRINCIPLES AS LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS REPORTED IN 259 ITR 19 AND CONSEQUENTLY, THE ORDERS OF THE AUTHORITIES BELOW NEED TO BE SET ASIDE AND THE ORDER OF RE-ASSESSMENT CANCELLED UNDER THE FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE. 5. WITHOUT PREJUDICE TO THE ABOVE, THE AUTHORITIES BELOW OUGHT TO HAVE ALLOWED THE DEDUCTIONS U/S. 54F OF THE ACT UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 6. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WITH THE HON'BLE CCIT/DG, THE APPELLANT DENIES HIMSELF LIABLE TO BE CHARGED TO INTEREST U/S 234B OF THE ACT, WHICH UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE DESERVES TO BE CANCELLED. 7. THE APPELLANT CRAVES LEAVE OF YOUR HONOUR TO ADD, ALTER, AMEND, ITA NO.759/BANG/2019 PAGE 2 OF 2 RECTIFY, AND DELETE ANY OF THE GROUNDS URGED ABOVE. 8. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL, THE APPELLANT HUMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED. 3. AT THE OUTSET, IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT AS NOTED BY CIT (A) IN PARA NOS. 5.3 AND 5.4 OF HIS ORDER, THE ADDITIONAL EVIDENCE SUBMITTED BY ASSESSEE IS NOT ADMITTED. HE SUBMITTED THAT ASSESSMENT ORDER IS PASSED BY THE AO U/S. 144 OF IT ACT. HE FURTHER POINTED OUT THAT AS PER PARA 2 OF THE ASSESSMENT ORDER, THE AO SAYS THAT THE ASSESSEE WAS ASKED TO FILE THE RETURN OF INCOME BUT THERE WAS NO RESPONSE FROM THE ASSESSEE. BUT IN PARA 5 OF THE ASSESSMENT ORDER, THE AO STATES THAT NOTICE U/S. 143(2) WAS ISSUED. HE SUBMITTED THAT THIS APPEARS TO BE CONTRADICTORY BECAUSE IN THE ABSENCE OF FILING OF RETURN OF INCOME, THERE IS NO NECESSITY OF ISSUE OF NOTICE U/S. 143(2) AND NO SUCH NOTICE WAS RECEIVED BY THE ASSESSEE AND THIS HAS TO FOUND OUT AS TO WHETHER ANY SUCH NOTICE WAS IN FACT ISSUED BY THE AO. HE SUBMITTED THAT IN THE FACTS OF PRESENT CASE, THE LD. CIT(A) SHOULD HAVE ADMITTED THE ADDITIONAL EVIDENCE BEFORE DECIDING THE MATTER. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A). 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. IN VIEW OF THE FACTS OF PRESENT CASE AS DISCUSSED ABOVE, I FEEL IT PROPER THAT LD. CIT(A) SHOULD HAVE ADMITTED THE ADDITIONAL EVIDENCE AND HENCE, I SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECISION WITH THE DIRECTION THAT IF THE ASSESSEE WANTS TO FILE ADDITIONAL EVIDENCE, THE SAME SHOULD BE ADMITTED AND IF REQUIRED, THE LD. CIT(A) MAY OBTAIN REMAND REPORT FROM THE AO AND THEREAFTER HE SHOULD DECIDE THE ISSUE AS PER LAW BY WAY OF A SPEAKING AND REASONED ORDER AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. IN VIEW OF THIS DECISION, NO ADJUDICATION ON MERIT IS CALLED FOR AT THE PRESENT STAGE. 5. 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 31 ST 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.