Fabio Exports, Hospet V. DCIT, Bangalore

ITA 883/BANG/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4678 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 12-07-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 09-06-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PADMA MEENAKSHI
• Assessee Lawyers: H N KHINCHA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 40A(3); 37(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 883 / BANG/201 5 ASSESSMENT YEAR : 20 08 - 09 M/S. FABIO EXPORTS, SWASTIK COMPLEX, DAM ROAD, OPP. ACNC COMPLEX, HOSPET. PAN: AAPFM7483A VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2 (1), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI H.N. KHINCHA, CA RESPONDENT BY : SMT. PADMA MEENAKSHI, JCIT (DR) DATE OF HEARING : 0 6 .0 6 .2018 DATE OF PRONOUNCEMENT : 08 .0 6 .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) 11, BANGALORE DATED 26.03.2015 FOR ASSESSMENT YEAR 2008-09. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE LEARNED ASSESSING OFFICER HAD ERRED IN PASSI NG THE IMPUGNED ORDER IN THE MANNER PASSED BY HIM AND THE LEARNED C OMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN CONFIRMING THE SA ME. 2. THE IMPUGNED ORDER IS BAD IN LAW AND IS VOID AB- INITIO FOR: A) LACK OF JURISDICTION B) LACK OF PROPER NOTICE C) FOR NOT FOLLOWING THE PRINCIPLES OF LAW APPLICAB LE AND HENCE IS REQUIRED TO BE QUASHED. 3. IN ANY CASE, THE IMPUGNED ORDER AS PASSED IS BAR RED BY LIMITATION AND HENCE IS LIABLE TO BE QUASHED. 4.1 IN ANY CASE AND WITHOUT PREJUDICE THE ASSESSING OFFICER HAD ERRED IN HOLDING THAT: ITA NO.883/BANG/2015 PAGE 2 OF 4 A) THE FIGURES AS STATED ARE FIGURE OF PURCHASE; B) THAT IN ANY CASE PURCHASES ARE NOT PROVED; C) THAT VENDORS ARE NOT IDENTIFIABLE; D) THAT THERE IS VIOLATION OF STATE GOVERNMENT RULE S; E) THE EXPLANATION TO SECTION 37(1) IS APPLICABLE T O SUCH PURCHASES G) THERE IS A VIOLATION OF SECTION 40A(3) OF THE I. T. ACT; AND THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN CONFIRMING THE SAME. 4.2 THE ABOVE CONCLUSIONS DRAWN BY THE AUTHORITIES BELOW, BESIDES BEING CONTRARY TO EACH OTHER, ARE NOT BASED ON FACT S OR EVIDENCE OR ANY LAW APPLICABLE. 4.3 ALL THE PURCHASES MADE BY APPELLANT ARE GENUINE , DULY VOUCHED AND SUPPORTED BY EVIDENCE AND VOUCHERS, VENDORS ARE IDENTIFIABLE AND THERE IS NOT VIOLATION OF ANY LAW EITHER OF STATE G OVERNMENT OR CENTRAL. 4.4 THE PROVISIONS OF EXPLANATION TO SECTION 37(1) OF THE I.T. ACT, 1961 OR 40A(3) OF THE I.T. ACT, ARE ALSO NOT APPLICABLE TO APPELLANT. 4.5 THE ADDITION MADE/CONFIRMED IS WHOLLY ERRONEOUS AND IS BEREFT ANY EVIDENCE AND IS NOT SUPPORTED BY ANY PRINCIPLES OF LAW OR ACCOUNTING PRINCIPLES AND THEREFORE THE ADDITION IS REQUIRED TO BE DELETED IN ENTIRETY. 5. THE APPELLANT ALSO DENIES THE LIABILITY TO PAY I NTEREST. THE INTEREST HAVING BEEN LEVIED ERRONEOUSLY IS TO BE DELETED IN ENTIRETY. 6. IN VIEW OF THE ABOVE AND ON OTHER GROUNDS TO BE ADDUCED AT THE TIME OF HEARING, IT IS REQUESTED THAT IMPUGNED ORDER TO BE QUASHED OR AT LEAST ADDITION TO INCOME AS MADE / CONFIRMED BE DEL ETED AND INTEREST LEVIED BE ALSO DELETED. 3. IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT GROU ND NO. 1 IS GENERAL. REGARDING GROUND NO. 2, HE SUBMITTED THAT SIMILAR GROUNDS WER E RAISED BEFORE CIT(A) ALSO BUT THE DECISION OF CIT(A) ON THESE GROUNDS IS VERY CRYPTIC AND IN THIS REGARD, HE DRAWN OUR ATTENTION TO PARA NO. 7 OF THE ORDER O F CIT(A). 4. REGARDING GROUND NO. 3 IN RESPECT OF ASSESSEES CLAIM REGARDING THIS ASPECT THAT THE ORDER PASSED IS BARRED BY LIMITATION, HE S UBMITTED THAT THIS GROUND NO. 3 IS NOT PRESSED. THE LD. DR OF REVENUE SUPPORTED TH E ORDER OF CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT THE ISSUE RAISED IN GROUND NO. 2 BEFORE US I.E. THE ISSUE REGARDING THE LACK OF JURISDICTION, LACK OF ITA NO.883/BANG/2015 PAGE 3 OF 4 PROPER NOTICE AND NOT FOLLOWING THE PRINCIPLES OF L AW APPLICABLE WERE RAISED BEFORE CIT(A) ALSO AS PER GROUND NO. 1 RAISED BEFOR E CIT(A) AND THE SAME GROUND I.E. 1 WAS DECIDED BY CIT(A) AS PER PARA 7 O F HIS ORDER AND THEREFORE, THIS PARA IS REPRODUCED HEREIN BELOW FOR THE SAKE O F READY REFERENCE. 7. THE TECHNICAL ISSUES COVERED IN GROUNDS 1 & 2 RE LATE TO THE LACK OF JURISDICTION OF ASSESSING OFFICER, IMPROPER NOTICE/ OPPORTUNITY AND THE ORDER BEING BARRED BY LIMITATION. I) JURISDICTION AND NATURAL JUSTICE: THE CLAIM OF LACK OF JURISDICTION AND PROPER NOTICE IS NOT SUBSTANTIATE WITH ANY DETAIL OR ARGUMENT AND FIND T HAT THE ASSESSING OFFICER HAS VALID REASON FOR WHICH NOTICE U/S 153C WAS ISSUED AND ACCEPTED BY THE APPELLANT. AS REGARDS, PRINCIPLES OF LAW NOT BEING FOLLOWED, N OTHING HAS BEEN POINTED OUT IN THIS REGARD. REPEATED OPPORTUNITY HAVE BEEN ALLOWED BY THE ASSES SING OFFICER AND DURING THE COURSE OF APPEAL. THE APPELL ANT HAS BEEN UNABLE TO EXPLAIN THE FINDINGS BROUGHT ON RECORD BY THE ASSESSING OFFICER. 6. FROM THE ABOVE PARA, IT IS SEEN THAT THE ORDER O F CIT(A) IS VERY CRYPTIC AND THEREFORE, WE FEEL IT PROPER TO RESTORE BACK THIS A SPECT OF THE MATTER TO THE FILE OF CIT(A) FOR FRESH DECISION BY WAY OF A SPEAKING AND REASONED ORDER AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BO TH SIDES. WE ORDER ACCORDINGLY. GROUND NO. 2 IS ALLOWED FOR STATISTIC AL PURPOSES. GROUND NO. 3 IS REJECTED AS NOT PRESSED. 7. REGARDING THE REMAINING GROUNDS ON MERIT, WE ARE OF THE CONSIDERED OPINION THAT NO ADJUDICATION IS CALLED FOR AT THIS STAGE RE GARDING MERIT OF THE CASE BECAUSE THE ISSUE ON TECHNICAL ASPECT SHOULD BE FIR ST DECIDED BY WAY OF A SPEAKING AND REASONED ORDER AND ONLY THEREAFTER, TH E ISSUE ON MERIT IS TO BE DECIDED. SINCE THE TECHNICAL ISSUE IS RESTORED BAC K BY US TO THE FILE OF CIT(A) FOR FRESH DECISION BY WAY OF A SPEAKING AND REASONE D ORDER, THE ISSUE ON MERIT IS ALSO RESTORED BACK TO THE FILE OF CIT(A) FOR FRE SH DECISION BY WAY OF A SPEAKING AND REASONED ORDER AFTER PROVIDING ADEQUAT E OPPORTUNITY OF BEING HEARD TO BOTH SIDES. IN THIS VIEW OF THE MATTER, W E DO NOT MAKE ANY COMMENT ON THE MERIT OF THE CASE. ITA NO.883/BANG/2015 PAGE 4 OF 4 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY 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) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 08 TH JUNE, 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.