E. Manjunath, Bellary V. The Deputy Commissioner of Income Tax, Central Circle 2(1), Bangalore

ITA 939/BANG/2017

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8236 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 31-12-2018
• Assessment Year: misc
• Appeal Filed On: 26-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 153A; 234B; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER A ND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO S . 938 TO 941 / BANG/201 7 ASSESSMENT YEAR S : 20 05 - 06, 2008 - 09, 2009 - 10 & 2011 - 12 SHRI E. MANJUNATH, H.NO. 440, 14 TH WARD, TEACHERS COLONY, BEHIND CHURCH, SANDUR TALUK, BELLARY. PAN: AAGPE7637K VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2 (1), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI BALRAM R. RAO, ADVOCATE RESPONDENT BY : SHRI PRADEEP KUMAR, CIT (DR) DATE OF HEARING : 31 . 1 2 .2018 DATE OF PRONOUNCEMENT : 31. 1 2 .2018 O R D E R PER BENCH: ALL THESE FOUR APPEALS ARE FILED BY THE ASSESSEE AN D THESE ARE DIRECTED AGAINST A COMBINED ORDER OF LD. CIT (A)-11, BANGALORE DATED 1 1.08.2016 FOR ASSESSMENT YEARS 2005-06, 2008-09, 2009-10 AND 2011-12. ALL THESE A PPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORD ER FOR THE SAKE OF CONVENIENCE. 2. THE GROUNDS RAISED BY THE ASSESSEE FOR ASSESSMENT YEAR 2005-06 IN ITA NO. 938/BANG/2017 ARE AS UNDER. 1. THE LEARNED CIT (APPEALS) ERRED IN UPHOLDING THE ORDER OF THE ASSESSING OFFICER IN THE MANNER IN WHICH HE DID. 2. THE LEARNED CIT (APPEALS) OUGHT TO HAVE PROVIDED SUFFICIENT OPPORTUNITY TO THE APPELLANT TO PUT FORTH HIS CLAIM . 3. THE LEARNED CIT (APPEALS) ERRED IN UPHOLDING THE ORDER PASSED U/S. 144 R.W.SEC. 153A WITHOUT PROVIDING SUFFICIENT OPPO RTUNITY TO THE APPELLANT. 4. THE LEARNED CIT (APPEALS) ERRED IN UPHOLDING THE ADDITION OF RS. 77,59,800/- WHICH COMPRISED OF RS. 8,72,200/- BEING A HAND LOAN AND RS. 68,87,600/- BEING CASH PAYMENT ON THE BASIS OF SURM ISES AND CONJECTURE. 5. THE LEARNED CIT (APPEALS) ERRED IN UPHOLDING THE INTEREST LEVIED U/S. ITA NOS. 938 TO 941/BANG/2017 PAGE 2 OF 4 234A & 234B AMOUNTING TO RS. 23,76,155/-, RS. 24,79 ,466/- RESPECTIVELY. 6. FOR THESE AND OTHER SUCH GROUNDS THAT MAY BE URG ED AT THE TIME OF THE HEARING OF THE APPEAL, THE APPELLANT PRAYS THAT THE APPEAL MAY BE ALLOWED. 3. THE GROUNDS RAISED BY THE ASSESSEE FOR ASSESSMENT YEAR 2008-09 IN ITA NO. 939/BANG/2017 ARE AS UNDER. 1. THE LEARNED CIT (APPEALS) ERRED IN UPHOLDING THE ORDER OF THE ASSESSING OFFICER IN THE MANNER IN WHICH HE DID. 2. THE LEARNED CIT (APPEALS) OUGHT TO HAVE PROVIDED SUFFICIENT OPPORTUNITY TO THE APPELLANT TO PUT FORTH HIS CLAIM . 3. THE LEARNED CIT (APPEALS) ERRED IN UPHOLDING THE ORDER PASSED U/S. 144 R.W.SEC. 153A WITHOUT PROVIDING SUFFICIENT OPPO RTUNITY TO THE APPELLANT. 4. THE LEARNED CIT (APPEALS) ERRED IN UPHOLDING THE ADDITION OF RS. 10,59,82,568/-WHICH COMPRISED OF RS. 10,52,34,998/- BEING CHEQUES SEIZED FROM THE APPELLANT'S PREMISES WHICH WERE RET AINED BY THE DEPARTMENT. 5. THE LEARNED CIT(APPEALS) ERRED IN UPHOLDING ADDI TION OF CASH PAYMENT OF RS.5,87,970/- WITHOUT APPRECIATING THE F ACT THAT THE SAME WAS CONSIDERED IN THE INCOME DECLARED. 6. THE LEARNED CIT(APPEALS) OUGHT TO HAVE APPRECIAT ED THAT THE CHEQUES WERE SEIZED BY THE DEPARTMENT AND WAS NOT CREDITED TO THE ACCOUNT OF APPELLANT AND THEREFORE THE ADDITION WAS UNCALLED F OR. 7. THE LEARNED CIT(APPEALS) OUGHT TO HAVE APPRECIAT ED THE FACT THAT THE ORDER PASSED U/S. 144 R.W.SEC. 153A WAS AN ORDER MA DE ON THE BASIS OF SURMISES AND CONJECTURE. 8. THE LEARNED CIT (APPEALS) ERRED IN UPHOLDING THE INTEREST LEVIED U/S. 234A, 234B & 234C AMOUNTING TO RS. 57,54,694/-, RS. 1,11,48,880/- & RS.226/- RESPECTIVELY. 9. FOR THESE AND OTHER SUCH GROUNDS THAT MAY BE URG ED AT THE TIME OF THE HEARING OF THE APPEAL, THE APPELLANT PRAYS THAT THE APPEAL MAY BE ALLOWED. 4. THE GROUNDS RAISED BY THE ASSESSEE FOR ASSESSMENT YEAR 2009-10 IN ITA NO. 940/BANG/2017 ARE AS UNDER. 1. THE LEARNED CIT (APPEALS) ERRED IN UPHOLDING THE ORDER OF THE ASSESSING OFFICER IN THE MANNER IN WHICH HE DID. 2. THE LEARNED CIT (APPEALS) FAILED TO PROVIDE SUFF ICIENT OPPORTUNITY TO THE APPELLANT TO PUT FORTH HIS CLAIM. ITA NOS. 938 TO 941/BANG/2017 PAGE 3 OF 4 3. THE LEARNED CIT (APPEALS) ERRED IN UPHOLDING THE ORDER PASSED U/S. 144 R.W.SEC. 153A WITHOUT PROVIDING SUFFICIENT OPPO RTUNITY TO THE APPELLANT. 4. THE LEARNED CIT (APPEALS) ERRED IN UPHOLDING THE ADDITION OF RS.2,15,93,352/- WHICH COMPRISED OF RS. 56,90,500/- BEING CASH DEPOSIT AND RS. 1.59,02,852/- BEING CHEQUE DEPOSIT IN STATE BANK OF MYSORE ON THE BASIS OF SURMISES AND CONJECTURE. 5. THE LEARNED CIT (APPEALS) ERRED IN UPHOLDING THE INTEREST LEVIED U/S. 234A & 234B AMOUNTING TO RS. 11,72,216/- & RS. 22,7 0,773/- RESPECTIVELY. 6. FOR THESE AND OTHER SUCH GROUNDS THAT MAY BE URG ED AT THE TIME OF THE HEARING OF THE APPEAL, THE APPELLANT PRAYS THAT THE APPEAL MAY BE ALLOWED. 5. THE GROUNDS RAISED BY THE ASSESSEE FOR ASSESSMENT YEAR 2011-12 IN ITA NO. 941/BANG/2017 ARE AS UNDER. 1. THE LEARNED CIT (APPEALS) ERRED IN UPHOLDING THE ORDER OF THE ASSESSING OFFICER IN THE MANNER IN WHICH HE DID. 2. THE LEARNED CIT (APPEALS) FAILED TO PROVIDE SUFF ICIENT OPPORTUNITY TO THE APPELLANT TO PUT FORTH HIS CLAIM. 3. THE LEARNED CIT (APPEALS) ERRED IN UPHOLDING THE ORDER PASSED U/S. 144 R.W.SEC. 153A WITHOUT PROVIDING SUFFICIENT OPPO RTUNITY TO THE APPELLANT. 4. THE LEARNED CIT (APPEALS) ERRED IN UPHOLDING THE ADDITION OF RS.2,73,19,651/- WHICH COMPRISED OF RS. 86,90,951/- BEING CHEQUE DEPOSIT AND RS.1,86,28,700/- BEING CASH DEPOSIT IN STATE BA NK OF MYSORE ON THE BASIS OF SURMISES AND CONJECTURE. 5. THE LEARNED CIT (APPEALS) ERRED IN UPHOLDING THE INTEREST LEVIED U/S. 234A & 234B AMOUNTING TO RS. 16,58,278/- & RS. 19,8 9,934/- RESPECTIVELY. 6. FOR THESE AND OTHER SUCH GROUNDS THAT MAY BE URG ED AT THE TIME OF THE HEARING OF THE APPEAL, THE APPELLANT PRAYS THAT THE APPEAL MAY BE ALLOWED. 6. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR O F ASSESSEE THAT THE IMPUGNED ORDER OF CIT (A) IS EX-PARTE QUA THE ASSESSEE. HE SUBMITTED THAT IT IS TRUE THAT LD. CIT (A) HAS FIXED FIVE DATES OF HEARING ON 21.1 1.2014, 15.12.2014, 10.01.2015, 29.06.2015 AND 29.12.2015 AND THE ASSES SEE HAS APPEARED ONLY ON THREE DATES I.E. 21.11.2014, 15.12.2014 AND 29.0 6.2015 AND REQUESTED FOR ITA NOS. 938 TO 941/BANG/2017 PAGE 4 OF 4 ADJOURNMENT WHICH WAS GRANTED BY CIT (A) AND ON REM AINING TWO DATES I.E. ON 10.01.2015 AND 29.12.2015, THE ASSESSEE COULD NOT A PPEAR BEFORE CIT (A) AND THERE WAS NO REQUEST MADE FOR ADJOURNMENT ALSO. HE SUBMITTED THAT IN SPITE OF THIS, IN THE INTEREST OF JUSTICE, THE MATTER MAY BE RESTORED BACK TO THE FILE OF CIT (A) FOR FRESH DECISION AFTER HEARING THE LD. AR OF ASSESSEE. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A). 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT IN SPITE OF NON- APPEARANCE OF THE ASSESSEE, THE LD. CIT (A) SHOULD HAVE DECIDED THE APPEAL OF THE ASSESSEE ON MERIT BUT INSTEAD OF THAT, HE SIMPL Y DISMISSED THE APPEAL BY STATING THAT THE ASSESSEE IS NOT INTERESTED IN PURS UING THE APPEAL. UNDER THESE FACTS, WE FEEL IT PROPER TO SET ASIDE THE ORDER OF CIT (A) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECISION IN ALL THESE YE ARS AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. WE ORDER ACCORDINGLY. IN VIEW OF THIS, NO ADJUDICATION IS CALLED FOR REGARDING THE MERIT O F THE CASE AT THE PRESENT STAGE. 8. IN THE RESULT, ALL THE FOUR APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE OF H EARING ON CONCLUSION OF THE HEARING. SD/- SD/- (PAVAN KUMAR GADALE) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBE R BANGALORE, DATED, 31 ST DECEMBER, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.