Shri.Praful Jain , Haryana V. Assistant Commissioner of Income Tax Ward-5(3)(3), Bangalore

ITA 977/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5920 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 27 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: 2013-2014
• Appeal Filed On: 04-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABDUL HAKEEM M
• Keywords: Salary income; Opportunity of being heard; Revised return; TDS; Set aside
• Section: 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-C BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 977 / BANG/201 8 ASSESSMENT YEAR : 20 1 3 - 14 SHRI PRAFUL JAIN, HOUSE NO. 503, 1 ST FLOOR, ORCHID ISLAND, SECTOR 51, GURUGRAM, HARYANA 122 108. PAN: AFVPJ2296P VS. THE INCOME TAX OFFICER, WARD 5 (3) (3), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI CHAVALI NARAYAN, CA RESPONDENT BY : SHRI ABDUL HAKEEM .M, JCIT (DR) DATE OF HEARING : 2 4 . 0 4 .2018 DATE OF PRONOUNCEMENT : 04 . 0 5 .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)-5, BANGALORE DATED 19.02.2018 FOR ASSESS MENT YEAR 2013-14. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) WAS INCORRECT AID UNJUSTIFIED: A. IN DISMISSING THE APPEAL OF THE ASSESSEE. B. IN HOLDING THAT THE AO HAD RIGHTLY AND VALIDLY A CQUIRED JURISDICTION OVER THE ASSESSEE AND THEREFORE HAD RIGHTLY FRAMED THE ASSESSMENT. C. IN NOT HOLDING THAT AO BANGALORE HAD NO VALID JU RISDICTION OVER THE ASSESSEE. D. IN NOT DECLARING THE ASSESSMENT PASSED U/S 143(3 ) AS INVALID AND VOID AB - INITIO IN THE ABSENCE OF ANY VALID JURISD ICTION UPON THE ASSESSEE. E. IN HOLDING THAT REQUEST OF THE ASSESSEE REGARDIN G NO JURISDICTION OVER HIM OF THE AO, CANNOT BE ACCEPTED. F. IN HOLDING THAT THE ASSESSEE WAS INSISTING ON TE CHNICAL ISSUE RATHER THAN THE MERITS OF THE CASE, MEANING THEREBY, THE C IT(A) EVEN ITA NO.977/BANG/2018 PAGE 2 OF 4 AGREEING WITH THE JURISDICTION ISSUE RAISED BY THE ASSESSEE BUT HAD NOT ACCEPTED THE JURISDICTIONAL ISSUE MAINLY ON THE BAS IS OF TECHNICAL GROUND WHICH IS NOT CORRECT. G. IN NOT AGREEING WITH THE REQUEST OF THE ASSESSEE THAT THE ASSESSEE HAD NOT FILED THE REVISED RETURN EVEN WHEN THE ASSE SSEE HAD INFORMED BOTH THE AO AND THE CIT(A) DURING ASSESSMENT PROCEE DINGS. H. IN HOLDING THAT THE AO WAS CORRECT AND JUSTIFIED IN NOT AGREEING WITH THE REQUEST OF THE ASSESSEE TO TRANSFER HIS CA SE TO GURGAON ON THE BASIS OF LACK OF TIME. I. IN NOT HOLDING THAT THE ASSESSMENT WAS BAD IN LA W AND INVALID IN THE ABSENCE OF SERVICE OF NOTICE U/S 143(2) EVEN THOUGH AGREEING FOR ABSENCE OF 143(2) NOTICE AS PER THE PARA 4.3 OF THE APPEAL ORDER. 2. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) WAS INCORRECT AND UNJUSTIFIED IN DISPOSING A ND DISMISSING THE APPEAL WITHOUT CONSIDERING AND DECIDING THE ISSUE O F JURISDICTION OF THE AO, BANGALORE UPON THE ASSESSEE. 3. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) WAS INCORRECT AND UNJUSTIFIED IN DISMISSING THE APPEAL EVEN WHEN THE ASSESSEE HAD NOT FILED THE REVISED RETURN AND ALSO HAD NOT CLAIMED REFUND. 4. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) WAS INCORRECT AND UNJUSTIFIED IN DISMISSING THE APPEAL EVEN WITHOUT CONSIDERING FORM 26AS. 5. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) WAS INCORRECT AND UNJUSTIFIED IN DECIDING TH E APPEAL EVEN ON MERITS ALONE WITHOUT CONSIDERING THE LEGAL ISSUE CL AIMING THAT THE AO, BANGALORE HAD NO JURISDICTION OVER THE ASSESSEE AND HENCE THE ASSESSMENT WAS ILLEGAL AND INVALID. 6. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) WAS INCORRECT AND UNJUSTIFIED IN DECIDING AN D DISMISSING THE APPEAL EVEN ON MERITS IN VIEW OF THE VARIOUS SUBMIS SION MADE VIDE SUBMISSIONS COVERING VARIOUS GROUNDS THAT THE ASSES SEE HAS FILED SALARY CERTIFICATE DISCLOSING CORRECT SALARY INCOME AND THE CORRECT AMOUNT OF TDS AND ALSO THE ASSESSMENT HAD ALREADY B EEN COMPLETED U/S 143(1) ACCEPTING THE CORRECT AMOUNT OF SALARY I NCOME AND THE AMOUNT OF TDS. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR O F ASSESSEE THAT THE ORDER PASSED BY CIT(A) IS EX-PARTE QUA THE ASSESSEE. HE FURTHER SUBMITTED THAT ADMITTEDLY, VARIOUS NOTICES WERE ISSUED BY CIT(A) AS NOTED BY H IM IN PARA 4 OF HIS ORDER BUT SINCE THE ASSESSEE IS RESIDING AT GURGAON FOR L AST SEVERAL YEARS AS NOTED BY CIT(A) ALSO IN PARA 4.1 OF HIS ORDER AND THEREFORE, THE ASSESSEE COULD NOT APPEAR BEFORE THE CIT(A). HE SUBMITTED THAT IN THE INTEREST OF JUSTICE, THE MATTER MAY BE RESTORED BACK TO THE FILE OF CIT(A) F OR FRESH DECISION AFTER ITA NO.977/BANG/2018 PAGE 3 OF 4 PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO AS SESSEE AND HE FURTHER SUBMITTED THAT IF THIS IS DONE, HE UNDERTAKES THAT THIS TIME, THE ASSESSEE WILL COMPLY AND APPEAR BEFORE CIT(A) TO MAKE OUT HIS CAS E. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A). HE ALSO SUBMITTED T HAT SINCE SEVERAL OPPORTUNITIES WERE PROVIDED BY CIT(A) TO ASSESSEE, THE ASSESSEE DOES NOT DESERVE ANY FURTHER OPPORTUNITY AND THEREFORE, THE ORDER OF CIT(A) SHOULD BE CONFIRMED. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND THAT THIS IS TRUE THAT VARIOUS NOTICES WERE ISSUED BY CIT(A) TO ASSESSEE DURING SE PTEMBER 2017 TO DECEMBER 2017 AND NEITHER THE ASSESSEE NOR HIS AR A PPEARED BEFORE HIM AND NO APPLICATION FOR ADJOURNMENT WAS FILED ALTHOUGH A SSESSEE HAS FILED WRITTEN SUBMISSIONS DATED 17.11.2017 IN WHICH IT WAS SUBMIT TED THAT SINCE THE ASSESSEE IS RESIDING AT GURGAON, THE AO AT BANGALOR E HAS NO JURISDICTION OVER THE ASSESSEE AND THEREFORE, ALL THE NOTICES AND THE ASSESSMENT ORDER DATED 28.03.2016 MADE BY THE AO IS ILLEGAL, INVALID AND V OID AB-INITIO . THESE FACTS ARE NOTED BY CIT(A) IN PARA 4 OF HIS ORDER. CONSID ERING THESE FACTS, I FEEL THAT IN THE INTEREST OF JUSTICE, ONE MORE OPPORTUNITY SHOUL D BE PROVIDED TO ASSESSEE TO MAKE PROPER REPRESENTATION BEFORE CIT(A) AND HENCE, I SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECISION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH SIDES . I WANT TO MAKE IT CLEAR THAT AS PER THE UNDERTAKING GIVEN BY THE LD. AR OF ASSESSEE, THE ASSESSEE SHOULD MAKE PROPER COMPLIANCE BEFORE CIT(A) TO MAKE OUT HIS CASE. IN VIEW OF THIS DECISION, NO ADJUDICATION IS CALLED FOR REGARD ING THE MERIT OF THE CASE AT THE PRESENT STAGE. 5. 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 04 TH MAY, 2018. /MS/ ITA NO.977/BANG/2018 PAGE 4 OF 4 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.