Mr.M.K.Mohan , Hassan V. The Income Tax Officer Ward-2 , Hassan

ITA 839/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5896 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 1 month(s) 13 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: 2011-2012
• Appeal Filed On: 19-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A C SURESH MUTHUKRISHNAN
• Assessee Lawyers: DR S PALANI
• Keywords: Unexplained investment; Unexplained expenditure; Depreciation; Opportunity of being heard; Set aside
• Section: 234B; 40(a)(ia)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-C BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 839 / BANG/201 8 ASSESSMENT YEAR : 20 1 1 - 12 SHRI K.M. MOHAN, DEVI NILAYA, SRI SAI ROAD, 2 ND CROSS, JAYANAGAR, NEAR TANVI TRISHA KALYAN MANTAP, HASSAN 573 202. PAN: AMVPK6219L VS. THE INCOME TAX OFFICER, WARD 2, HASSAN. APPELLANT RESPONDENT APPELLANT BY : DR. S. PALANI, ADDL. CIT (DR) RESPONDENT BY : SHRI A.C. SURESH MUTHUKRISHNAN, CA DATE OF HEARING : 1 3 . 0 4 .2018 DATE OF PRONOUNCEMENT : 20 . 0 4 .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 OF LD. CIT (A), MYSORE DATED31.08.2016 FOR ASSESSMENT YEAR 2011-12. 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 LA W, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE ORDER PASSED BY LD. A.0 AND UPHELD BY THE LD . COMMISSIONER OF INCOME TAX (APPEALS) IS ARBITRARY IN AS MUCH AS THE SAME WAS MADE WITHOUT PROVIDING THE MANDATORY OPPORTUNITY TO BE H EARD UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE APPELLANT DENIES HIMSELF LIABLE TO BE ASSESS ED ON A TOTAL INCOME OF RS.46,17,550/- AS DETERMINED BY THE AUTHORITIES BELOW AS AGAINST THE REPORTED TOTAL TAXABLE INCOME OF RS.4,66,590/- BY THE APPELLANT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN MAKIN G AN ADDITION OF RS.86,789/- AS DIFFERENCE IN TOTAL INCOME UNDER THE FACTS AND ITA NO.839/BANG/2018 PAGE 2 OF 4 CIRCUMSTANCES OF THE CASE. 5. THE AUTHORITIES BELOW ARE JUSTIFIED IN MAKING AN ADDITION OF RS.26,13,140 /- AS DIFFERENCE IN SALES UNDER THE FA CTS AND CIRCUMSTANCES OF THE CASE. 6. THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN MAKIN G AN ADDITION OF RS.2,20,000/-TOWARDS UNPROVED CREDITORS UNDER THE F ACTS AND CIRCUMSTANCES OF THE CASE. 7. THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN MAKIN G AN ADDITION OF RS.2,74,690/-AS VAT DIFFERENCE UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 8. THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN DISAL LOWING A SUM OF RS. 86,625/-UNDER THE HEAD LABOUR WAGES UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 9. THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN MAKIN G AN ADDITION OF RS. 52,379/-BEING THE INTEREST DEBITED ON AGRICULTURE L OAN UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 10. THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN MAKI NG A DISALLOWANCE U/S 40(A)(IA) OF RS.6,10,810/- UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 11. THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN MAKI NG AN ADDITION OF RS. 71,759/- AS UNEXPLAINED EXPENDITURE-ROYALTY UND ER THE FACTS AND CIRCUMSTANCES OF THE CASE. 12. THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN MAKI NG AN ADDITION OF RS.1,32,570/-AS UNEXPLAINED INVESTMENT UNDER THE FA CTS AND CIRCUMSTANCES OF THE CASE. 13. THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN MAKI NG AN ADDITION OF RS. 2,239/- AS EXCESS DEPRECIATION UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 14. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER W ITH 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 T HE CIRCUMSTANCES OF THE APPELLANT'S CASE DESERVES TO BE CANCELLED. 15. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, SUBST ITUTE AND DELETE ANY OR ALL OF THE GROUNDS OF APPEAL URGED ABOVE. 16. WHEREFORE THE APPELLANT PRAYS THAT THIS HON'BLE TRIBUNAL BE PLEASED TO ALLOW THE APPEAL AND SET-ASIDE THE ORDER S PASSED BY THE AUTHORITIES BELOW TO THE EXTENT THEY ARE AGAINST TH E APPELLANT AND PASS SUCH OTHER ORDER AS THIS HON'BLE TRIBUNAL DEEM FIT AND PROPER ON THE ITA NO.839/BANG/2018 PAGE 3 OF 4 FACTS AND CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE AND EQUITY. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR O F ASSESSEE THAT THIS APPEAL WAS FILED LATE BEFORE THE TRIBUNAL AND THE DELAY IS OF 131 DAYS. HE ALSO SUBMITTED THAT THE ASSESSEE HAS MADE AN APPLICATION FOR CONDO NATION OF DELAY ALONG WITH AN AFFIDAVIT. HE SUBMITTED THAT THE DELAY SHOULD B E CONDONED. THE LD. DR OF REVENUE STRONGLY OPPOSED THE CONDONATION OF DELAY. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND THAT IN THE AFFIDAVIT FILED BY THE ASSESSEE, IT HAS BEEN STATED THAT HE HAS SHIFTED HI S RESIDENCE FROM HOLENARSIPUR TO HASSAN AND HIS AGED MOTHER WHO WAS RESIDING AT HIS EARLIER ADDRESS AT THE RELEVANT POINT OF TIME AND SHE RECEI VED THE ORDER OF CIT(A) AND BECAUSE OF HER OLD AGE AND LACK OF EDUCATION, SHE H AS FORGOTTEN TO HANDOVER THE ORDER TO HIM AND ON A SUBSEQUENT DATE WHEN THE ASSESSEE VISITED HIS MOTHER, HE CAME ACROSS THE POSTAL ENVELOPE CONTAINI NG THE APPELLATE ORDER AND THEREAFTER, HE IMMEDIATELY TOOK STEPS TO FILE THE A PPEAL BEFORE THE TRIBUNAL. CONSIDERING THESE FACTS, I CONDONE THE DELAY IN FIL ING THE APPEAL BEFORE THE TRIBUNAL. 5. THE LD. AR OF ASSESSEE SUBMITTED THAT FOR THE SA ME REASONS FOR WHICH HE COULD NOT FILE THE APPEAL BEFORE THE TRIBUNAL IN TIME, HE COULD NOT MAKE COMPLIANCE BEFORE CIT(A) ALSO BECAUSE ONLY ONE HEARING NOTICE WAS ISSUED BY CIT(A) FIXING THE DATE OF HEARING ON 30.08.2016 AND THE SAME DID NOT REACH TO THE ASSESSEE BECAUSE OF THE SAME REASONS AND THEREFORE, IN THE I NTEREST OF JUSTICE, THE MATTER MAY BE RESTORED BACK TO THE FILE OF CIT(A) FOR FRES H DECISION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE A ND IF THIS IS DONE THE ASSESSEE WILL ENSURE PROPER COMPLIANCE BEFORE CIT(A ). THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT (A). 6. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. IN VIE W OF THESE FACTS THAT THE ASSESSEE HAS SHIFTED HIS RESIDENCE DURING THE RELEV ANT PERIOD AND THE NOTICE WAS ACTUALLY SERVED ON THE AGED MOTHER OF ASSESSEE AND IT DID NOT ACTUALLY REACH TO THE ASSESSEE, IT WILL BE IN THE INTEREST O F JUSTICE TO PROVIDE ONE MORE ITA NO.839/BANG/2018 PAGE 4 OF 4 OPPORTUNITY TO THE ASSESSEE AND HENCE, I SET ASIDE THE ORDER OF CIT (A) AND RESTORE THE MATTER BACK TO ITS FILE FOR FRESH DECIS ION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE. IN VIEW OF THIS DECISION, NO ADJUDICATION IS CALLED FOR REGARDING THE MERIT OF T HE CASE AT THE PRESENT STAGE. HENCE, I DO NOT MAKE ANY COMMENT ON THE MERIT OF TH E CASE. 7. 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 20 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.