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Income Tax Appellate Tribunal, “C” BENCH : BANGALORE
Before: SHRI N. V. VASUDEVAN & SHRI JASON P BOAZ
The grounds of appeal raised by the assessee in each of these three appeals are extracted hereunder:-
4.1 ITA No.2739/Bang/2018 – Assessment Year 2006-07 1. The orders of the authorities below in so far as they are against the appellant, are opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case. 2. The learned CIT[A] is not justified in disposing off the appeal ex-parte without allowing sufficient and real opportunity to the appellant to represent the case and hence, the impugned order passed requires to be set-aside / cancelled. 3. The learned CIT [A] has erred in holding that the appellant who is an agriculturist and deriving only agriculture income, which is exempt from tax and having no other income exceeding the income not liable to tax is obliged to obtain a Permanent Account Number [PAN] in terms of section 139[A] and further erred in holding that the appeal filed by the appellant by not obtaining the PAN and not citing the same in the Memo of appeal, the appeal filed by the appellant is invalid in law, which is on erroneous appreciation of the admitted facts and law and consequently, the impugned assessment order requires to be cancelled. 3.1 The learned CIT[A] failed to appreciate that the learned A.O. himself has not cited the PAN number in the assessment order in column [3] as required by law and the learned CIT[A] further failed to appreciate that the A.O. could have on his own secured the appellant a PAN number soon after serving the notice to make the impugned assessment order.
ITA Nos. 2739 to 2741/Bang/2018 Page 5 of 9
3.2 The learned CIT[A] further ought to have appreciated that mentioning of PAN in Form No. 35 was not a mandatory requirement for filing the first appeal and hence the appeal ought to have been admitted and adjudicated on merits instead of being rejected on this ground. 4. The order of assessment u/s.147 rws 144 of the Act, is bad in law and void- ab-initio for want of requisite jurisdiction especially on the date of passing the order and especially, the mandatory requirements to assume jurisdiction u/s 148 of the Act did not exist and have not been complied with and consequently, the assessment u/s.147 requires to be cancelled. 5. The learned CIT[A] is not justified in refusing to dispose off the ground regarding completion the assessment u/s.144 of the Act, under the facts and in the circumstances of the appellant's case. 6. Without prejudice to the above, the learned CIT[A] is not justified in sustaining the assessment of a sum of Rs. 11,07,930/- made by the learned A.O. as long term capital gains, under the facts and in the circumstances of the appellant's case. 7. Without prejudice to the above, the learned CIT[A] ought to have appreciated that the entire capital gains assessed was liable for exemption u/s. 54F of the Act and the same ought to have been allowed. 8. Without prejudice to the right to seek waiver with the Hon'ble CCIT/DG, the appellant denies himself liable to be charged to interest u/s. 234-A and 234-B of the Act, which under the facts and in the circumstances of the appellant's case deserves to be cancelled. 9. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs.
ITA Nos. 2739 to 2741/Bang/2018 Page 6 of 9
4.2 ITA No.2740/Bang/2018 – Assessment Year 2006-07
The orders of the authorities below in so far as they are against the appellant, are opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case. The learned CIT[A] is not justified in disposing off the appeal 2. without allowing sufficient and real opportunity to the appellant to represent his case before the learned CIT[A] under the facts and in the circumstances of the appellant's case. The learned CIT[A] is not justified in upholding the penalty 3. of Rs. 10,000/- levied u/s. 271[1][b] of the Act under the facts and in the circumstances of the appellant's case. He failed to appreciate that the appellant had not committed any default actionable u/s.271[1][b] of the Act and consequently, the levy of penalty deserves to be cancelled. 4. Without prejudice to the above, the learned CIT[A] failed to appreciate that the appellant was prevented by reasonable cause in not complying with the notices and consequently, the penalty levied deserves to be cancelled. 5. Without prejudice to the above, the penalty levied is excessive and liable to be reduced substantially. 6. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs.
4.3 ITA No.2741/Bang/2018 – Assessment Year 2006-07 The orders of the authorities below in so far as they are 1. against the appellant, are opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case. 2. The learned CIT[A] is not justified in disposing off the appeal without allowing sufficient and real opportunity to the appellant to represent his case before the learned CIT[A] under the facts and in the circumstances of the appellant's case.
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The learned CIT[A] is not justified in upholding the penalty of Rs. 2,05,618/- levied u/s. 271[1][c] of the Act under the facts and in the circumstances of the appellant's case. 4. The learned CIT[A] failed to appreciate that the appellant has neither concealed any income nor furnished inaccurate particulars of income in respect of the addition made to warrant levy of penalty and therefore, the penalty levied u/s.271[1][c] of the Act requires to be cancelled. 5. Without prejudice to the above, the penalty levied is highly excessive and liable to be reduced substantially. 6. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs.
4.4 At the outset, it was submitted by the learned AR for the assessee that all these three appeals were dismissed by the CIT(A) in limine, without deciding the issues / grounds raised on merits. In ITA No.2739/Bang/2018, the assessee’s appeal was dismissed by the CIT(A) for the reason that the assessee had not mentioned the PAN in the respective Form No.35 filed by the assessee before the CIT(A) and thereby violating the provisions of section 249 of the Act. In respect to the assessee’s appeals in ITA Nos.2740 and 2741/Bang/2018, it was submitted by the learned AR that as is evident from a perusal for these impugned orders of the CIT(A), only one date of hearing had been afforded by the CIT(A) to the assessee, i.e., on 18.09.2017 and that the AR for the assessee had filed adjournment petition on the very same day i.e., on 18.09.2017 seeking adjournment which was not considered by the CIT(A). It was prayed that in the interest of equity and justice, these impugned orders of CIT(A) be set aside and the matters restored to the file of CIT(A) for fresh examination and adjudication and as the assessee has since obtained PAN, it should be held that there is no violation of section 249 of the Act.
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4.5 Per contra, the learned DR for Revenue supported the orders of the authorities below.
4.6.1 We have heard the rival contentions and perused and carefully considered the material on record. We observe that as per the impugned order of the CIT(A) which is the subject matter of appeal in ITA No.2739/Bang/2018, the CIT(A) has held that the assessee has not obtained and not furnished the PAN in Form No.35. Regarding this finding of the CIT(A), we find that now the assessee has obtained PAN – AANHM 6722 N (a copy of which is placed on record) and therefore this objection of the CIT(A) does not survive anymore. Therefore, in the interest of substantial justice, we set aside the impugned order of the CIT(A) dated 22.09.2017 and restore the matter to his file for admission and consideration and disposal on merits of the issues raised therein, after affording the assessee adequate opportunity of being heard and to file details / submissions required, which shall be duly considered by the CIT(A) before deciding the issues for consideration. We hold and direct accordingly.
4.6.2 The contention / view of the CIT(A) in the appeals in ITA Nos.2740 & 2741/Bang/2018 is that the assessee has not attended before the CIT(A) on the date of hearing and that the appeal Memorandum were not accompanied by copy of the orders appeal against. In this regard, on a perusal of the impugned orders, we find that the CIT(A) had afforded the assessee only one opportunity of hearing on 18.09.2017. It is also seen from the record before us that the assessee, through its Advocate, had filed petitions before the CIT(A) on 18.09.2017 (copies placed on record), seeking adjournment of the hearing fixed on that day; receipt of which is duly acknowledged by the Office of CIT(A), Mysore. We find this fact of the adjournment letters having been filed and acknowledged by his Office has neither been acknowledged nor considered by the CIT(A) when he passed the impugned orders, dismissing the assessee’s appeals on 31.07.2017 ex-parte qua the assessee.
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Taking into account the facts and circumstances of the case, as discussed above, we are of the considered opinion that the interest of substantial justice will be well served by setting aside these impugned ex-parte orders of the CIT(A) dated 31.10.2017 and restore the matters in both these appeals also to his file for admission, consideration and disposal on merits of the issues raised therein, after affording the assessee adequate opportunity of being heard and to file details / submissions required, which shall be duly considered by the CIT(A) before deciding the issues for consideration. We hold and direct accordingly.
In the result, the assessee’s appeal for Assessment Year 2006-07 in ITA Nos.2739 to 2741/Bang/2018 are allowed for statistical purposes.
Pronounced in the open court on this 12th day of April, 2019.
Sd/- Sd/- (N. V. VASUDEVAN) (JASON P BOAZ) Vice President Accountant Member Bangalore. Dated: 12th April, 2019. /NS/* Copy to: 1. Appellants 2. Respondent 3. CIT 4. CIT(A) 5. DR 6. Guard file By order
Assistant Registrar, ITAT, Bangalore.