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Income Tax Appellate Tribunal, BENGALURU BENCH B, BENGALURU
Before: SHRI. A. K. GARODIA & SHRI. LALIET KUMAR
IN THE INCOME TAX APPELLATE TRIBUNAL BENGALURU BENCH 'B', BENGALURU BEFORE SHRI. A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI. LALIET KUMAR, JUDICIAL MEMBER (Assessment Year : 2009-10) M/s. Marian Infrastructures, 13-12-1394/57(7), 3rd 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 against the order of the CIT (A), Mangaluru, dt.28.02.2017, for the assessment year 2009-10.
ITA.952/Bang/2017 Page - 2 The following grounds of appeal are raised by the assessee :
ITA.952/Bang/2017 Page - 3
Brief facts are, a survey u/s.133A was conducted at the business premises of the assessee on 09.05.2013. The 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.195 of the IT Act. The AO issued notice u/s.148 of the Act, on 05.03.2015. The AO had also communicated the reason recorded for reopening of the assessment and in pursuance thereto the assessee filed an objection to the said reason. However, considering the objection raised by the assessee, the AO passed a speaking order rejecting the objection for reopening and thereafter the AO passed the assessment order u/s.143(3) r.w.s.147, dt.31.12.2015 making the addition. Feeling aggrieved by the same, the assessee preferred an appeal before the CIT (A).. 03. Before the CIT (A) the assessee had taken various grounds including the following grounds :
ITA.952/Bang/2017 Page - 4
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 submitted that the order passed by the Commissioner is silent on the material 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 counts . 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 before 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 above, we remand the matter to the file of the CIT (A) to decide these grounds afresh in accordance with law, after giving opportunity of being heard to the assessee. Needless to say, as these grounds goes to the root of matter pertain to the jurisdiction of the AO , in the event the CIT(A) decided these grounds in favour of the assessee then the entire decision passed by the authorities below would be liable to be set ITA.952/Bang/2017 Page - 5 aside. As we are reminding back the matter to the file of the Commissioner pertaining to the grounds number 1 to 3 , we’re not expressing any opinion with respect to other grounds and these grounds are also remanded back to the file of the Commissioner for passing the appropriate order considering the outcome of the grounds number 1 to 3 .
06. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 13th day of December, 2018.