M/s Marian Infrastructures , Mangalore V. The Assistant Commissioner of Income Tax Circle-2(1), Mangalore

ITA 952/BANG/2017

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9818 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 28-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R N SIDDAPPAJI CIT HEARD ON PR
• Keywords: Opportunity of being heard

Judgement Text

ITA.952/BANG/2017 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BENGALURU BENCH 'B', BENGALURU BEFORE SHRI. A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI. LALIET KUMAR, JUDICIAL MEMBER I.T.A NO.952/BANG/2017 (ASSESSMENT YEAR : 2009-10) M/S. MARIAN INFRASTRUCTURES, 13-12-1394/57(7), 3 RD FLOOR, RAMABHAVAN COMPLEX, KODIALBAIL, MANGALURU 575003 .. APPELLANT PAN : AAPFM1507K V. ASST. COMMISSIONER OF INCOME-TAX, CIRCLE 2(1), MANGALURU .. RESPONDENT ASSESSEE BY : SHRI. SIDDESH GADDI, CA REVENUE BY : SHRI. R. N. SIDDAPPAJI, ADDL. CIT HEARD ON : 29.11.2018 PRONOUNCED ON : 13.12.2018 O R D E R PER LALIET KUMAR, JUDICIAL MEMBER : THE PRESENT APPEAL IS FILED BY THE ASSESSEE AGAINS T THE ORDER OF THE CIT (A), MANGALURU, DT.28.02.2017, FOR THE ASSE SSMENT YEAR 2009-10. ITA.952/BANG/2017 PAGE - 2 THE FOLLOWING GROUNDS OF APPEAL ARE RAISED BY THE A SSESSEE : ITA.952/BANG/2017 PAGE - 3 02. BRIEF FACTS ARE, A SURVEY U/S.133A WAS CONDUCT ED AT THE BUSINESS PREMISES OF THE ASSESSEE ON 09.05.2013. T HE AO NOTICED THAT THE ASSESSEE HAD PAID A SUM OF RS.81,33,875/- TO ONE SHRI. ANAND KUMAR, AN NRI, WITHOUT DEDUCTION OF TAX U/S.1 95 OF THE IT ACT. THE AO ISSUED NOTICE U/S.148 OF THE ACT, ON 0 5.03.2015. THE AO HAD ALSO COMMUNICATED THE REASON RECORDED FOR RE OPENING OF THE ASSESSMENT AND IN PURSUANCE THERETO THE ASSESSE E FILED AN OBJECTION TO THE SAID REASON. HOWEVER, CONSIDERING THE OBJECTION RAISED BY THE ASSESSEE, THE AO PASSED A SPEAKING OR DER REJECTING THE OBJECTION FOR REOPENING AND THEREAFTER THE AO PASSE D THE ASSESSMENT ORDER U/S.143(3) R.W.S.147, DT.31.12.201 5 MAKING THE ADDITION. FEELING AGGRIEVED BY THE SAME, THE ASSES SEE PREFERRED AN APPEAL BEFORE THE CIT (A).. 03. BEFORE THE CIT (A) THE ASSESSEE HAD TAKEN VARIO US GROUNDS INCLUDING THE FOLLOWING GROUNDS : ITA.952/BANG/2017 PAGE - 4 04. THE AR OF THE ASSESSEE HAD SUBMITTED BEFORE US THAT THE ORDER PASSED BY THE COMMISSIONER IS SILENT ON THE GROUNDS NUMBERED 1TO 3 RAISED BEFORE HIM. HE HAD DRAWN OUR ATTENTION TO THE ORDER PASSED BY THE COMMISSIONER WHERE NEITHER THE GROUNDS WERE REPRODUCED BY THE COMMISSIONER NOR THE ADJUDICATION HAS TAKEN PLACE ON THE SAID GROUNDS . ON THE BASIS OF THE ABOVE IT WAS SUB MITTED THAT THE ORDER PASSED BY THE COMMISSIONER IS SILENT ON THE M ATERIAL ASPECT WHICH GOES TO THE ROOT OF THE MATTER AND THEREFORE THE ORDER PASSED BY THE COMMISSIONER IS REQUIRED TO BE SET ASIDE AND A DIRECTION BE ISSUED TO THE COMMISSIONER TO ADJUDICATE THESE COUN TS . PER CONTRA LD. DR RELIED UPON THE ORDER OF THE CIT (A). 05. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. FROM A PERUSAL OF THE GROUNDS RAISED BEFORE THE CIT (A) AND ALSO THE GROUNDS REPRODUCED IN THE FIRST APPELLATE ORDER AND THE REASONING GIVEN IN THE APPELLATE ORDER, WE ARE CONVINCED WITH THE SUBMISSION MADE BY THE LD. AR THAT GROUNDS 1, 2 AND 3 RAISED B EFORE THE CIT (A) REPRODUCED HEREIN ABOVE HAD NOT CONSIDERED AND DECIDED BY THE CIT (A). IT WAS ALSO NOT MENTIONED BY THE CIT (A) WHILE ADJUDICATING THE GROUNDS OF APPEAL BEFORE HIM THAT THESE GROUNDS WERE NOT PRESSED BY THE ASSESSEE. IN VIEW OF THE A BOVE, WE REMAND THE MATTER TO THE FILE OF THE CIT (A) TO DECIDE THE SE GROUNDS AFRESH IN ACCORDANCE WITH LAW, AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. NEEDLESS TO SAY, AS THESE GROUNDS GO ES TO THE ROOT OF MATTER PERTAIN TO THE JURISDICTION OF THE AO , IN T HE EVENT THE CIT(A) DECIDED THESE GROUNDS IN FAVOUR OF THE ASSESSEE TH EN THE ENTIRE DECISION PASSED BY THE AUTHORITIES BELOW WOULD BE L IABLE TO BE SET ITA.952/BANG/2017 PAGE - 5 ASIDE. AS WE ARE REMINDING BACK THE MATTER TO THE F ILE OF THE COMMISSIONER PERTAINING TO THE GROUNDS NUMBER 1 TO 3 , WERE NOT EXPRESSING ANY OPINION WITH RESPECT TO OTHER GROUND S AND THESE GROUNDS ARE ALSO REMANDED BACK TO THE FILE OF THE C OMMISSIONER FOR PASSING THE APPROPRIATE ORDER CONSIDERING THE OUTCO ME OF THE GROUNDS NUMBER 1 TO 3 . 06. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH DAY OF DECEMBER, 2018. SD/- SD/- (A. K. GARODIA) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER BENGALURU DATED : 13.12.2018 MCN* COPY TO: 1. THE ASSESSEE 2. THE ASSESSING OFFICER 3. THE COMMISSIONER OF INCOME-TAX 4. COMMISSIONER OF INCOME-TAX(A) 5. DR 6. GF, ITAT, BANGALORE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, BANGALORE.