Sri Surendra Kanimihally Setty , Bangalore V. Income Tax Officer Ward-5(3)(3), Bangalore

ITA 805/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5893 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 01-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 15-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 234B; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-C BENCH : BANGALORE BEFORESHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 805 / BANG/201 8 ASSESSMENT YEAR : 20 13 - 14 SHRI SURENDRA KANIMIHALLY SETTY, REPRESENTED BY: GPA HOLDER: K JAGANNATHA SETTY, #109/21, FIRST FLOOR, KRISHNA LAYOUT, HULIMAVU, BANNERGHATTA ROAD, BANGALORE 560 076. PAN: ASHPS8110J VS. THE INCOME TAX OFFICER, WARD 5 (3) (3), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI G.S. PRASHANTH, CA RESPONDENT BY : SHRI ABDUL HAKEEM .M, JCIT (DR) DATE OF HEARING : 2 5 . 0 4 .2018 DATE OF PRONOUNCEMENT : 04 . 0 5 .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 OFLD. CIT(A)-5, BANGALORE DATED 07.11.2017 FOR ASSESSMENT YEAR 2013-14. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE ORDER OF THE AUTHORITIES BELOW IN SO FAR AS IT IS AGAINST THE APPELLANT IS OPPOSED TO LAW, WEIGHT OF EVIDENCE, NA TURAL JUSTICE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE APPEL LANT'S CASE. 2. THE APPELLANT DENIES HIMSELF LIABLE TO BE ASSESS ED ON A TOTAL INCOME OF RS.19,71,980/- ON THE FACTS OF THE CASE. 3. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ACTIO N OF THE ASSESSING OFFICER IN ASSESSING THE APPELLANT'S INCOME AT RS.1 9,71,980/- WITHOUT GIVING THE RELIEF OF STANDARD DEDUCTION OF 23,300 U SD ALLOWED BY FEDERAL GOVERNMENT OF USA ON THE FACTS OF THE CASE. 4. THE LEARNED ASSESSING OFFICER OUGHT TO HAVE ALLO WED THE STANDARD DEDUCTION CLAIMED BY THE APPELLANT OF 23,300 USD FR OM THE INCOME ITA NO.805/BANG/2018 PAGE 2 OF 3 EARNED IN USA AS WAS ALLOWED BY THE FEDERAL GOVERNM ENT OF USA ON THE FACTS OF THE CASE. 5. THE LEARNED CIT(A) FAILED TO APPRECIATE THE FACT THAT THE APPELLANT HAD FILED A RECTIFICATION APPLICATION COMPUTING THE INCOME AT RS.12,53,966/- WHICH WAS NOT CONSIDERED BY THE ASSE SSING OFFICER, THEREFORE THE ACTION OF THE LEARNED CIT(A) IN STATI NG THAT THE APPELLANT HIMSELF HAD DECLARED AN INCOME OF RS.19,71,980/- IS FACTUALLY WRONG ON THE FACTS OF THE CASE. 6. THE AUTHORITIES BELOW FURTHER FAILED TO TAKE COG NISANCE OF THE SUBMISSIONS MADE BY THE APPELLANT ON THE FACTS OF T HE CASE. 7. THE APPELLANT DENIES HIMSELF LIABLE TO BE LEVIED TO INTEREST UNDER SECTION 234A AND 234B OF THE ACT AND FURTHER THE CO MPUTATION OF INTEREST WAS NOT PROVIDED TO THE APPELLANT AS REGAR D TO THE RATE, PERIOD AND METHOD OF CALCULATION OF INTEREST UNDER THE FAC TS AND CIRCUMSTANCES OF THE CASE. 8. WITHOUT PREJUDICE, THE INTEREST LEVIED UNDER SEC TIONS 234A AND 234B OUGHT TO HAVE BEEN WAIVED OFF UNDER THE FACTS AND C IRCUMSTANCES OF THE CASE. 9. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, DELETE OR SUBSTITUTE ANY OF THE GROUNDS URGEDABOVE. 10. IN VIEW OF THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF THE HEARING OF THE APPEAL, THE APPELLANT PR AYS THAT THE APPEAL MAY BE ALLOWED IN THE INTEREST OF JUSTICE AND EQUIT Y. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR O F ASSESSEE THAT THERE ARE APPARENT MISTAKES IN THE ASSESSMENT ORDER AND FOR T HE RECTIFICATION OF THE SAME, THE ASSESSEE HAS FILED A PETITION FOR RECTIFI CATION BEFORE THE AO U/S. 154 ON 28.04.2016, COPY AVAILABLE ON PAGES 29 AND 30 OF PAPER BOOK. HE SUBMITTED THAT TILL DATE, THIS PETITION FOR RECTIFI CATION U/S. 154 IS NOT DISPOSED OF BY THE AO. HE SUBMITTED THAT EITHER THE PRESENT AP PEAL OF THE ASSESSEE SHOULD BE KEPT PENDING TILL THIS PETITION OF ASSESSEE U/S. 154 IS DISPOSED OF BY THE AO OR THE ISSUE INVOLVED IN THIS APPEAL MAY BE RESTORE D BACK TO THE FILE OF AO FOR FRESH DECISION WITH THE DIRECTION THAT CONTENTIONS RAISED BY THE ASSESSEE IN THIS PETITION DATED 28.04.2016 U/S. 154 SHOULD ALSO BE C ONSIDERED WHILE DECIDING THE ISSUE AFRESH. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A). ITA NO.805/BANG/2018 PAGE 3 OF 3 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND THAT AS PER GROUND NO. 3 OF THE APPEAL RAISED BEFORE THE TRIBUNAL, THIS IS THE CLAI M OF THE ASSESSEE THAT THE ASSESSEE IS ENTITLED FOR STANDARD DEDUCTION OF 23,3 00 USD ALLOWED BY FEDERAL GOVERNMENT OF USA AND IN THE PETITION DATED 28.04.2 016 FILED BY THE ASSESSEE BEFORE THE AO U/S. 154 OF IT ACT ALSO, THE SAME CON TENTIONS ARE RAISED FOR ALLOWING STANDARD DEDUCTION OF 23,300 USD. AS PER THE LD. AR OF ASSESSEE, THIS PETITION OF ASSESSEE FILED BEFORE THE AO U/S. 154 IS STILL PENDING AND HENCE, I FEEL IT PROPER TO SET ASIDE THE ORDER OF CIT(A) A ND RESTORE THE MATTER BACK TO THE FILE OF AO FOR FRESH DECISION WITH THE DIRECTIO N THAT WHILE FRAMING THE ASSESSMENT AFRESH, THE AO SHOULD DECIDE THIS ASPECT OF THE MATTER ALSO IN RESPECT OF ALLOWABILITY OF STANDARD DEDUCTION OF 23 ,300 USD AS CLAIMED BY THE ASSESSEE. I ORDER ACCORDINGLY. NEEDLESS TO SAY, TH E AO SHOULD PROVIDE ADEQUATE OPPORTUNITY OF BEING HEARD TO ASSESSEE AND SHOULD PASS A SPEAKING AND REASONED ORDER. IN VIEW OF THIS DECISION, NO A DJUDICATION IS CALLED FOR REGARDING THE MERIT OF THE CASE AT THE PRESENT STAG E AND HENCE, I DO NOT MAKE ANY COMMENT ON THE MERIT OF THE CASE. 5. 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 04 TH MAY, 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.