Sri Puttaswamy S , Mysore V. Income TAx Officer Ward-1(3), Mysore

ITA 773/BANG/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 5085 (ITAT-BANGALORE)
• Duration Of Justice: 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 13-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 54F; 142(1); 234B; 147; 148; 54; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE-PRESIDENT AND SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 773 /BANG/201 8 ASSESSMENT YEAR : 20 07 - 08 SHRI PUTTASWAMY S, NO. 2, VIJAYA CONVENT ROAD, YARAGANAHALLI, KASABAHOBLI, MYSORE TALUK, MYSORE. VS. THE INCOME TAX OFFICER, WARD 1 [3], MYSORE. APPELLANT RESPONDENT ASSESSEE BY : SHRI RAVISHANKAR, ADVOCATE RE VENUE BY : MS. NEERA MALHOTRA, CIT (DR) DATE OF HEARING : 1 0 . 10 .2018 DATE OF PRONOUNCEMENT : 17 . 1 0 .2018 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE AND THE SAME I S DIRECTED AGAINST THE ORDER OF LD. CIT(A), MYSORE DATED 28.09.2017 FOR AS SESSMENT YEAR 2007-08. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME- TAX [APPEALS] PASSED UNDER SECTION 250 OF THE ACT IN SO FAR AS IT IS AGAINST THE APPELLANT IS OPPOSED TO LAW, WEIGHT OF EVIDENCE, PR OBABILITIES, FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE. 2. THE APPELLANT DENIES TO BE ASSESSED AT RS.10,73, 531/- AGAINST THE INCOME OF NIL AS ARRIVED AT AFTER CLAIMING DEDUCTIO N UNDER SECTION 54F OF THE ACT, ON THE FACTS AND CIRCUMSTANCES OF T HE CASE. 3. WHETHER THE LEARNED COMMISSIONER OF INCOME TAX [ APPEALS] WAS JUSTIFIED IN CONFIRMING THE ADDITIONS OF RS. 10,73, 531/- ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THE LEARNED CIT(A) WAS NOT JUSTIFIED IN HOLDING THAT THE APPELLANT HAS NOT OBTAINED A PAN IN THE STATUS OF HUF, WHEN T HE HUF WAS NOT EXISTENT, ON THE FACTS AND CIRCUMSTANCES OF THE CAS E. 5. THE LEARNED CIT(A) WAS NOT JUSTIFIED IN HOLDING THAT THE APPELLANT HAS NOT PAID THE SELF ASSESSMENT TAX, WHEN THERE AR OSE NO TAXABLE INCOME AFTER THE CLAIM OF DEDUCTION UNDER SECTION 5 4F OF THE ACT, ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. WHETHER THE CIT(A) ERRED IN CONFINING HIMSELF TO MATERIAL ON RECORD TO HOLD THAT THE APPELLANT WAS LIABLE TO PAY SELF ASSESSMENT TAX, WHEN THERE WAS NO TAXABLE INCOME, AS EVIDENT FROM T HE CLAIM UNDER SECTION 54 OF THE ACT. ITA NO.773/BANG/2018 PAGE 2 OF 4 7. WHETHER THE CIT(A) WAS JUSTIFIED CONFIRMING THE ADDITIONS IN THE HANDS OF THE HUF, BY NOT APPRECIATING THAT THE APPE LLANT WAS AN INDIVIDUAL AND WRONGLY ASSESSED UNDER HUF ON THE FA CTS AND CIRCUMSTANCES OF THE CASE. 8. THE APPELLANT DENIES HIMSELF AND THE NON-EXISTEN T HUF LIABLE TO BE TAXED OVER AND ABOVE THE INCOME RETURNED BY THE APP ELLANT OF NIL, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 9. THE CIT(A) OUGHT TO HAVE REMANDED THE MATTER TO THE LEARNED ASSESSING OFFICER FOR DETAILED VERIFICATION ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 10. THE LEARNED ASSESSING OFFICER IS NOT JUSTIFIED IN LAW IN CHARGING THE INTEREST UNDER SECTION 234A AND 234B OF THE ACT AND FURTHER THE CALCULATION OF INTEREST UNDER SECTION 234A AND 234B OF THE ACT IS NOT IN ACCORDANCE WITH LAW SINCE THE RATE, METHOD OF CA LCULATION, QUANTUM IS NOT DISCERNABLE FROM THE ORDER OF ASSESSMENT ON THE FACTS AND CIRCUMSTANCE OF THE CASE. 11. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, SUBST ITUTE AND DELETE ANY OR ALL OF THE GROUNDS OF APPEAL URGED ABOVE. 12. FOR THE ABOVE AND OTHER GROUNDS TO BE URGED DUR ING THE HEARING OF THE APPEAL THE APPELLANT PRAYS THAT THE APPEAL BE A LLOWED IN THE INTEREST OF EQUITY AND JUSTICE. 3. THE ASSESSEE HAS RAISED ADDITIONAL GROUNDS OF AP PEAL WHICH ARE AS UNDER. 1. WHETHER THE AUTHORITIES BELOW WERE JUSTIFIED IN LAW IN ASSESSING THE APPELLANT UNDER THE STATUS OF 'HUF' A ND CONSEQUENTLY THE ORDER OF ASSESSMENT IS BAD IN LAW? 2. WHETHER THE LEARNED ASSESSING OFFICER HAS ASSUME D PROPER JURISDICTION IN THE CASE OF THE APPELLANT 3. WHETHER THE LEARNED ASSESSING OFFICER HAD ASSUME D PROPER JURISDICTION TO REOPEN THE ASSESSMENT SINCE NOTICE UNDER SECTION 148 OF THE ACT WAS NEVER SERVED ON THE ASSESSEE ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. WHETHER THE LEARNED CIT(A) IS ALSO NOT JUSTIFIED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER TO RE-OPEN THE ASSESSMENT SINCE THE ASSESSING OFFICER DID NOT HAVE 'REASON TO BELIE VE' THAT INCOME HAS ESCAPED ASSESSMENT FOR THE A.Y. 2007-08 BUT COU LD ONLY HAVE HAD A REASON TO SUSPECT ON THE FACTS AND CIRCUMSTAN CES OF THE CASE. 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY , DELETE OR SUBSTITUTE ANY OR ALL OF THE GROUNDS AT THE TIME OF HEARING THE APPEAL. 6. IN THE VIEW OF THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF THE HEARING OF THE APPEAL, THE APPELLAN T PRAYS THAT THE APPEAL MAY BE ALLOWED AND APPROPRIATE RELIEF MAY BE GRANTED IN THE INTEREST OF JUSTICE AND EQUITY. 4. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR O F ASSESSEE THAT THE ASSESSEE IS AN INDIVIDUAL AND NOT HUF IN THE NAME OF ASSESSE E AND THEREFORE, THE ASSESSMENT ORDER PASSED BY THE AO IN THE NAME OF TH E ASSESSEE WITH THE ITA NO.773/BANG/2018 PAGE 3 OF 4 STATUS OF HUF IS BAD IN LAW AND SHOULD BE QUASHED. AT THIS JUNCTURE, THE BENCH POINTED OUT THAT THE ORDER OF CIT(A) IS EX-PA RTE QUA THE ASSESSEE AND THEREFORE, THE MATTER HAS TO GO BACK TO THE FILE OF CIT(A) FOR A DECISION. IN REPLY, IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT IT IS NOTED BY CIT(A) IN PARA 2 OF THE IMPUGNED ORDER THAT SHRI B. ASHWIN KU MAR, CHARTERED ACCOUNTANT AND AR OF ASSESSEE WAS HEARD. HE FURTHE R POINTED OUT THAT THIS IS ALSO NOTED BY CIT(A) THAT WRITTEN SUBMISSIONS AR E AVAILABLE ON RECORD. BUT WHILE DECIDING THE APPEAL AS PER PARA 3 OF HIS ORDER, HE HAS NEITHER CONSIDERED THE WRITTEN SUBMISSIONS NOR THE ARGUMENT S MADE BY LD. AR OF ASSESSEE. THE LD. DR OF REVENUE SUPPORTED THE ORDE RS OF AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT THE ASSESSMENT ORDER IN THE PRESENT CASE IS PASSED BY THE AO U/S. 144 R.W.S 147 OF IT ACT BECAUSE THE ASSESSEE HAS NEITHER FILED THE RETURN O F INCOME IN PURSUANCE TO NOTICE ISSUED BY THE AO U/S. 148 NOR THE ASSESSEE H AS APPEARED BEFORE THE AO IN RESPONSE TO NOTICE U/S. 142(1) OF IT ACT DATE D 21.10.2014. IN THIS REGARD, IT IS SUBMITTED BY ASSESSEE IN PARA 4 OF TH E STATEMENT OF FACTS FILED BEFORE CIT (A) THAT THE ASSESSEE HAS NOT RECEIVED A NY NOTICE FROM THE AO AND HE WAS BUSY IN PROVIDING TREATMENT TO HIS AILIN G MOTHER DURING THE YEAR 2014-15. IN THE SAME STATEMENT OF FACTS, THIS IS AL SO STATED BY THE ASSESSEE THAT THE ASSESSEE IN THE STATUS OF HUF OWNED 1 ACRE 20 GUNTAS OF LAND AT YARAGANAHALLI, MYSORE. HENCE IT IS SEEN THAT THE A SSESSEE IS MAKING CONTRADICTORY SUBMISSIONS BEFORE US BECAUSE LD. AR OF ASSESSEE STATED THAT THE ASSESSEE IS NOT HAVING ANY STATUS OF HUF AND IN THE SUBMISSION OF FACTS FILED BEFORE CIT(A), IT HAS BEEN STATED BY THE ASSE SSEE THAT THE ASSESSEE IN THE STATUS OF HUF WAS HOLDING 1 ACRE 20 GUNTAS OF L AND AT YARAGANAHALLI, MYSORE. AS PER THE IMPUGNED ORDER OF CIT(A), IT IS SEEN THAT ON THE FIRST PAGE OF HIS ORDER, LD. CIT(A) SAYS THAT NONE APPEAR ED ON BEHALF OF THE ASSESSEE BUT IN PARA 2 OF THE IMPUGNED ORDER, IT IS STATED BY HIM THAT SHRI B. ASHWIN KUMAR, CA AND AR OF ASSESSEE APPEARED BEFORE HIM AND HE WAS HEARD. HE ALSO NOTED THAT THE WRITTEN SUBMISSIONS ARE ON RECORD. BUT WHILE DECIDING THE APPEAL AS PER PARA 3 OF THE IMPUGNED O RDER, HE HAS SIMPLY DISMISSED THE APPEAL ON THIS BASIS THAT THE APPEAL IS NOT ADMISSIBLE BECAUSE THE ASSESSEE HAS NOT MENTIONED THE PAN IN T HE FORM NO. 35 FILED ITA NO.773/BANG/2018 PAGE 4 OF 4 BEFORE HIM WHICH IS MANDATORY REQUIREMENT UNDER RUL E 45 OF THE INCOME TAX RULES, 1962. BUT THERE IS NO MENTION AS TO WHE THER THIS FACT WAS POINTED OUT BY HIM TO LD. AR OF ASSESSEE WHO APPEAR ED BEFORE HIM AND WHAT THE SUBMISSIONS OF HIM WERE IN THIS REGARD. C ONSIDERING ALL THESE FACTS, WE FEEL IT PROPER TO RESTORE BACK THE MATTER TO THE FILE OF CIT (A) FOR FRESH DECISION BY WAY OF A SPEAKING AND REASONED OR DER AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. THE CIT(A) IS DIRECTED TO GIVE CATEGORICAL FINDING AS TO WHETHER THE ASSESSEE IS HAVING ANY HUF STATUS OR NOT PARTICULARLY IN VIEW OF THIS STATEMEN T OF FACTS FILED BEFORE CIT(A) THAT LAND IN QUESTION IS OWNED BY ASSESSEE IN THE S TATUS OF HUF AND AS PER GROUND NO. 4 RAISED BEFORE THE TRIBUNAL, THE ASSESS EE IS STATING THAT THE ASSESSEE HUF WAS NOT EXISTENT. IN VIEW OF THIS CON TRADICTORY STAND OF THE ASSESSEE IN THE SUBMISSION OF FACTS FILED BEFORE CI T(A) AND GROUNDS OF APPEAL FILED BEFORE THE TRIBUNAL, THE CIT(A) SHOULD GIVE CATEGORICAL FINDING WHETHER ANY HUF IN THE NAME OF ASSESSEE IS IN EXIST ENCE OR NOT AND THEREAFTER, HE SHOULD HEAR THE ISSUE ON MERIT BY WA Y OF A SPEAKING AND REASONED ORDER AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. IN VIEW OF THIS DECISION, NO ADJUDICATION I S CALLED FOR REGARDING THE MERIT OF THE CASE AT THE PRESENT STAGE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (N.V. VASUDEVAN) (ARUN KUMAR GARODIA) VICE-PRESIDENT ACCOUNTANT MEMBER BANGALORE, DATED, THE 17 TH OCTOBER, 2018. /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.