Sri.M N Sheshagiri , Mysore V. Income TAx Officer Ward-2(3), Mysore

ITA 838/BANG/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4863 (ITAT-BANGALORE)
• Duration Of Justice: 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 19-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GURUPRASAD
• Keywords: Opportunity of being heard; Revised return
• Section: 234B; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 838 / BANG/201 8 ASSESSMENT YEAR : 20 1 2 - 13 SRI M.N. SHESHAGIRI, NO. 201, SANKALP DIVYAROOPA APRTS., ADI PAMPA ROAD, V.V. MOHALLA, MYSORE 570 002. PAN: AIMPS3798P VS. THE INCOME TAX OFFICER, WARD 2 [3], MYSORE. APPELLANT RESPONDENT APPELLANT BY : SHRI RAVISHANKAR, ADVOCATE RESPONDENT BY : SHRI GURUPRASAD, ADDL. CIT (DR) DATE OF HEARING : 10 . 0 4 .2018 DATE OF PRONOUNCEMENT : 13 . 0 4 .201 8 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE O RDER OF LD. CIT(A), MYSORE DATED 31.10.2017 FOR ASSESSMENT YEAR 2012-13. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME- TAX [APPEALS] PASSED UNDER SECTION 251(1) OF THE ACT IN SO FAR AS IT IS AGAINST THE APPELLANT IS OPPOSED TO LAW,WEIGHT OF EVIDENCE, PRO BABILITIES, FACTS AND CIRCUMSTANCES OF THE APPELLANT'S CASE. 2. THE APPELLANT DENIES HIMSELF LIABLE TO BE ASSESS ED TO TOTAL INCOME OF RS.38,22,410/ - AS AGAINST THE RETURNED INCOME OF R S. 3,64,610/- ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. GROUNDS ON ADDITION OF RS.34,24,681/- A. THE LEARNED COMMISSIONER OF INCOME-TAX [APPEALS] WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION MADE BY THE LE ARNED ASSESSING OFFICER OF RS. 34,24,682/- BY DISALLOWING THE DEDUC TION CLAIMED BY THE APPELLANT UNDER SECTION 54 OF THE ACT ON THE FA CTS AND CIRCUMSTANCES OF THE CASE. B. THE LEARNED CIT(A) WAS NOT JUSTIFIED IN LAW, IN NOT APPRECIATING ITA NO.838/BANG/2018 PAGE 2 OF 3 THAT THE OVER SIGHT IN NOT MAKING A DEPOSIT INTO TH E CAPITAL GAINS SCHEME WAS A TECHNICAL DEFAULT AS LONG AS THE FINAL OBJECTIVE OF ACQUISITION OF THE HOUSE PROPERTY, ON THE FACTS AND CIRCUMSTANCES OF THE CASE. C. THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THA T THE EXEMPTION PROVISION UNDER SECTION 54 OF THE ACT IS A BENEFICIAL PROVISION AND THEREFORE TO BE LIBERALLY CONSTRUED. D. WITHOUT PREJUDICE, THE ASSESSEE WAS ENTITLED TO FILE A RETURN U/S139(5) OF THE ACT, ON RECEIVING A NOTICE U/S142( 1) OF THE ACT FROM THE AO, BEFORE THE EXPIRY OF ONE YEAR FROM CLO SE OF THE ASSESSMENT YEAR OR BEFORE THE COMPLETION OF THE ASS ESSMENT PROCEEDINGS WHICHEVER WAS EARLIER, HENCE THE AO OUG HT TO HAVE CONSIDERED THE PAYMENTS MADE UP TO THE DATE AVAILAB LE FOR FILING OF REVISED RETURN I.E. 31-03-2014 AMOUNTING TO RS. 54, 13,000/- FOR THE PURPOSES OF CALCULATING THE INVESTMENT IN THE NEW H OUSE PROPERTY AGAINST RS.22,06,000/- ASSUMED BY THE AO IN THE ORD ER ENCLOSED. 4. THE LEARNED CIT(A) WAS NOT JUSTIFIED IN PASSING THE ORDER, WITHOUT GIVING SUFFICIENT OPPORTUNITY OF HEARING TO THE APP ELLANT, ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THE LEARNED ASSESSING OFFICER IS NOT JUSTIFIED I N LAW IN CHARGING THE INTEREST UNDER SECTION 234B OF THE ACT AND FURTHER THE CALCULATION OF INTEREST UNDER SECTION 234B OF THE ACT IS NOT IN AC CORDANCE WITH LAW SINCE THE RATE, METHOD OF CALCULATION, QUANTUM IS N OT DISCERNABLE FROM THE ORDER OF ASSESSMENT ON THE FACTS AND CIRCUMSTAN CE OF THE CASE. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, SUBSTI TUTE AND DELETE ANY OR ALL THE GROUNDS OF APPEAL URGED ABOVE. 7. FOR THE ABOVE AND OTHER GROUNDS TO BE URGED DURI NG THE HEARING OF THE APPEAL THE APPELLANT PRAYS THAT THE APPEAL BE A LLOWED IN THE INTEREST OF EQUITY AND JUSTICE. 3. AT THE VERY OUTSET, IT WAS POINTED OUT BY THE LD . AR OF ASSESSEE THAT IMPUGNED ORDER PASSED BY LD. CIT(A) IS EX-PARTE QUA THE ASSE SSEE. HE FURTHER POINTED OUT THAT IT IS NOTED BY CIT(A) IN PARA 3 OF HIS ORD ER THAT FIRST DATE OF HEARING WAS FIXED ON 19.09.2017 WHICH WAS NOT ATTENDED BUT LETT ER SEEKING ADJOURNMENT OF THE HEARING WAS RECEIVED FROM AR OF ASSESSEE AND HE ARING WAS ADJOURNED TO 30.10.2017 AFTER PLACING THE ASSESSEE ON NOTICE. H E SUBMITTED THAT THEREFORE, ON THIS DATE OF HEARING I.E. ON 19.09.2017, ADJOURN MENT APPLICATION WAS MADE BY THE ASSESSEE AND ONLY ON THE NEXT DATE I.E. 30.1 0.2017, THE ASSESSEE COULD NOT APPEAR BEFORE CIT(A) AND NO APPLICATION WAS FIL ED FOR ADJOURNMENT ALSO BUT ITA NO.838/BANG/2018 PAGE 3 OF 3 WITHOUT PROVIDING ANY FURTHER OPPORTUNITY TO ASSESS EE IN THE INTEREST OF JUSTICE, THE IMPUGNED ORDER WAS PASSED BY CIT(A) ON 31.10.20 17. 4. CONSIDERING THESE FACTS, I FEEL IT PROPER THAT I N THE INTEREST OF JUSTICE, THE MATTER MAY GO BACK TO THE FILE OF CIT (A) FOR FRESH DECISI ON AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO ASSESSEE. HENCE I SE T ASIDE THE ORDER OF CIT (A) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH D ECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. 5. IN VIEW OF THIS DECISION, NO ADJUDICATION IS CAL LED FOR REGARDING THE MERIT OF THE CASE AT THE PRESENT STAGE. HENCE I DO NOT MAKE ANY COMMENT ON THE MERIT OF THE CASE. 6. 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 13 TH APRIL, 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.