Sri.Mohankumar Gowda C , Chamarajanagara V. Assistant Commissioner of Income TAx Circle-1(1), Mysore

SA 108/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5870 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 01-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 23-03-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PADMA MEENAKSHI
• Assessee Lawyers: VANI H
• Keywords: Opportunity of being heard; Set aside

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 S.P. NO. 108/BANG/2018 (IN ITA NO. 924/BANG/2018) ASSESSMENT YEAR : 20 1 4 - 15 & ITA NO. 924/BANG/2018 ASSESSMENT YEAR :20 14 - 15 SHRI MOHAN KUMAR GOWDA .C, NO. 7/255-B, SOUTHERN EXTENSION, CHIKKALINGEGOWDA EXTENSION, KOLLEGAL, CHAMARAJANAGARA 571 440. PAN: ACWPM1023D VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1 (1), MYSORE. APPELLANT RESPONDENT APPELLANT BY : SMT. VANI .H, ADVOCATE RESPONDENT BY : SMT. PADMA MEENAKSHI, JCIT (DR) DATE OF HEARING : 20 .04.2018 DATE OF PRONOUNCEMENT : 20 .04.2018 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS STAY PETITION IS FILED BY THE ASSESSEE SEEKING STAY OF OUTSTANDING DISPUTED DEMAND OF RS. 9.38 LAKHS AND THE APPEAL OF THE ASSE SSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT (A), MYSORE DATED 31.10.2017 FOR A SSESSMENT YEAR 2014-15. 2. IN COURSE OF HEARING, IT WAS POINTED OUT BY LD. AR OF ASSESSEE THAT THE IMPUGNED ORDER OF CIT(A) IS EX-PARTE QUA THE ASSESSEE AND SH E FURTHER POINTED OUT THAT IN THE FORM NO. 35 FILED BEFORE CIT(A), THE ASSESSEE H AS PROVIDED ADDRESS OF THE ASSESSEES ADVOCATE FOR SERVING THE NOTICE ON THE A SSESSEE BUT IN FACT, THE NOTICE WAS ISSUED IN THE NAME OF THE ASSESSEE BUT THE ADDR ESS GIVEN IN THE NOTICE IS THAT OF THE ADVOCATE OF THE ASSESSEE AND BECAUSE OF THIS MISMATCH, THE NOTICE WAS NOT SERVED ON THE ASSESSEE AND LD. CIT(A) HAS P ASSED THE ORDER EX-PARTE S.P. NO. 108/BANG/2018 & ITA NO. 924/BANG/2018 PAGE 2 OF 3 QUA THE ASSESSEE ON 31.10.2017 AND THEREFORE, IN TH E INTEREST OF JUSTICE, THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF CIT(A ) FOR FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO AS SESSEE AND IF THAT IS DONE THEN THE STAY PETITION OF ASSESSEE WILL BECOME INFR UCTUOUS. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A). 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT IN THE FORM NO. 35, COPY OF WHICH HAS BEEN FILED BY ASSESSEE ALONG WITH THE APPEAL MEMO, THE ADDRESS FOR SERVING THE NOTICE ON ASSESSEE WAS PROV IDED AS NO. 73, CISRS BUILDING, MILLERS ROAD, BENSON TOWN, BANGALORE 56 0 046 AND THE NOTICE HAS BEEN SENT BY THE CIT(A) AT THIS ADDRESS ONLY. NOW THE ARGUMENT RAISED BEFORE US IS THIS THAT THIS ADDRESS IS OF THE ADVOCATE OF THE ASSESSEE AND THEREFORE, THE NAME OF THE ADVOCATE SHOULD HAVE BEEN MENTIONED IN THE ADDRESS OF THE NOTICE SENT BY CIT (A). ADMITTEDLY THIS WAS NOT DONE BY C IT(A) BUT IN THE FORM NO. 35 ALSO, THE ASSESSEE HAS NOT MENTIONED THE NAME OF TH E ADVOCATE OF THE ASSESSEE OF WHICH THE ADDRESS IS GIVEN BY THE ASSESSEE IN CO LUMN 17 OF FORM NO. 35. BE THAT AS IT MAY BUT THIS IS THE CLAIM OF THE ASSESSE E THAT NOTICE WAS NOT SERVED ON THE ASSESSEE AND AS PER PARA 3 OF THE ORDER OF CIT( A) ALSO, THE NOTICE HAS BEEN RETURNED BACK BY POSTAL DEPARTMENT TO CIT(A) WITH T HE POSTAL REMARKS NO SUCH PERSON AT THIS ADDRESS. UNDER THIS FACTUAL POSITI ON, WE FEEL IT PROPER THAT THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF CIT ( A) FOR FRESH DECISION AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. ACCORDINGLY, WE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTE R BACK TO THE FILE OF CIT(A) FOR FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. THE NOTICE OF HEARING SHOULD BE SENT BY CIT(A) TO T HE ASSESSEE AS WELL AS TO THE ADVOCATE OF THE ASSESSEE WHOSE ADDRESS IS GIVEN IN COLUMN 17 OF FORM NO. 35 AND THE NAME OF THE ADVOCATE STATED BEFORE US AS SM T. VANI .H, ADVOCATE. 4. IN VIEW OF THIS DECISION, NO ADJUDICATION IS CAL LED FOR REGARDING THE MERIT OF THE CASE AT THE PRESENT STAGE. SINCE THE APPEAL OF THE ASSESSEE IS BEING DECIDED BY THIS ORDER, THE STAY PETITION HAS BECOME INFRUCTUOU S AND IS LIABLE TO BE DISMISSED AS SUCH. WE DISMISS THE SAME. S.P. NO. 108/BANG/2018 & ITA NO. 924/BANG/2018 PAGE 3 OF 3 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AND THE STAY PETITION FILED BY THE ASSESSEE IS DISM ISSED. 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 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.