Shri. Chittibabu Bheemaneni, Bangalore V. Asst.C.I.T., Bangalore

ITA 831/BANG/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7426 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 05-07-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 21-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMER SINGH MEENA
• Assessee Lawyers: S V RAVISHANKAR
• Keywords: Opportunity of being heard; Bonafide belief

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NOS.831 TO 833/BANG/2016 ASSESSMENT YEAR : 2010-11 TO 2012-13 SHRI CHITTIBABU BHEEMANENI, NO.19, 5 TH CROSS, SWIMMING POOL EXTENSION, MALLESHWARAM, BANGALORE 560 003. PAN: ABGPC 0995F VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 2(2)(1), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI S.V. RAVISHANKAR, ADVOCATE RESPONDENT BY : SHRI SUMER SINGH MEENA, ADDL. CIT(DR) DATE OF HEARING : 12.10.2017 DATE OF PRONOUNCEMENT : 31.10.2017 O R D E R PER SUNIL KUMAR YADAV, JUDICIAL MEMBER THESE APPEALS ARE PREFERRED BY THE ASSESSEE AGA INST THE RESPECTIVE ORDERS OF THE CIT(APPEALS) INTER ALIA ON COMMON GROUNDS AND FOR THE SAKE OF REFERENCE, WE EXTRACT THE GROUNDS R AISED IN APPEAL ITA NO.831/BANG/2016. ITA NOS. 831 TO 833/BANG/2016 PAGE 2 OF 4 1. THE ORDER OF THE CIT(A) IN SO FAR AS IT IS AG AINST THE APPELLANT IS OPPOSED TO LAW, EQUITY, AND WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE APPELLANT DENIES HIMSELF LIABLE TO A PENALT Y OF RS.5,000/- UNDER SECTION 271F OF THE ACT, FOR THE I MPUGNED ASSESSMENT YEAR 2010-11 ON THE FACTS AND CIRCUMSTAN CES OF THE CASE. 3. THE LEARNED CIT(A) WAS NOT JUSTIFIED IN CONFIRM ING THE ORDER OF PENALTY, WHEN THE APPELLANT DID NOT HAVE T AXABLE INCOME AND THE APPELLANT WAS NOT REQUIRED TO FILE THE RETU RN OF INCOME ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THE LEARNED CIT(A) WAS NOT JUSTIFIED IN CONFIRM ING THE ORDER OF PENALTY WHEN THE ORDER OF PENALTY HAS BEEN PASSED WITHOUT JURISDICTION. 5. THE LEARNED CIT(A) WAS NOT JUSTIFIED IN NOT CON SIDERING THE FACT THAT THE APPELLANT WAS UNDER THE BONAFIDE BELIEF THAT SINCE THE INCOME ON INTEREST WAS COVERED BY TDS AND THERE WAS A REFUND FOR THE ASSESSMENT YEAR, THE FILING OF INCOM E TAX RETURNS WAS NOT NECESSARY TO BE FILED. 6. THE LEARNED C!T(A) WAS NOT JUSTIFIED IN FAILING TO APPRECIATE THE FACT THAT THE PENAL PROVISIONS ARE N OT AUTOMATIC AND THE LEARNED ASSESSING OFFICER HAS NOT EXERCISED HER DISCRETION IN IMPOSING PENALTY AS PER THE PROVISIONS OF SECTION 2 73 B OF THE ACT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 7. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIF Y, DELETE OR SUBSTITUTE ANY OR ALL OF THE GROUNDS AND TO FILE A PAPER BOOK AT THE TIME OF HEARING THE APPEAL. 8. IN VIEW OF THE ABOVE AND OTHER GROUNDS THAT MAY BE TAKEN AT THE TIME OF THE HEARING THE APPEAL, THE APPELLAN T PRAYS THAT THE APPEAL BE ALLOWED IN THE INTEREST OF JUSTICE AND EQ UITY. ITA NOS. 831 TO 833/BANG/2016 PAGE 3 OF 4 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL FO R THE ASSESSEE HAS CONTENDED THAT THE CIT(APPEALS) HAS DISMISSED THE A PPEAL EX PARTE WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THOUGH THE ASSESSEE HAS SOUGHT ADJOURNMENT, BUT THE CIT(APPEALS) WITHOUT ACCOMMODATING THE ASSESSEE, DISPOSED THE AP PEAL EX PARTE . THEREFORE, IN THE INTEREST OF JUSTICE, THE ORDER OF CIT(APPEALS) BE SET ASIDE AND THE MATTER RESTORED TO HIM FOR ADJUDICATION OF THE APPEALS AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSE E. 3. THE LD. DR PLACED RELIANCE UPON THE ORDER OF CIT (APPEALS) WITH THE SUBMISSION THAT THE CIT(APPEALS) HAS AFFORDED PROPE R OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. HAVING CAREFULLY EXAMINED THE ORDERS OF LOWER AU THORITIES IN THE LIGHT OF RIVAL SUBMISSIONS, WE FIND THAT BEFORE THE CIT(A PPEALS) THE ASSESSEE SOUGHT ADJOURNMENT, BUT THE ASSESSEE WAS NOT ACCOMM ODATED BY THE CIT(APPEALS) AND HE HAS DISMISSED THE APPEAL EX PARTE AGAINST THE ASSESSEE. THEREFORE, WE ARE OF THE VIEW THAT ONE MO RE OPPORTUNITY SHOULD BE AFFORDED TO THE ASSESSEE IN THE INTEREST OF JUST ICE. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE CIT(APPEALS) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO READJUDICATE THE APPEALS AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NOS. 831 TO 833/BANG/2016 PAGE 4 OF 4 5. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF OCTOBER, 2017. SD/- SD/- ( A.K. GARODIA ) ( SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE, DATED, THE 31 ST OCTOBER, 2017. / D ESAI S MURTHY / COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY ITAT, BANGALORE.