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Income Tax Appellate Tribunal, “B” BENCH : BANGALORE
Before: SHRI ARUN KUMAR GARODIA & SHRI LALIET KUMAR
O R D E R PER BENCH All these six appeals are filed by two different but connected assessees for the same Assessment Year i.e. Assessment Year 2007-08 and for each assessee, there are three appeals out of which one has arisen in course of assessment proceedings completed by the AO u/s. 147 r.w.s. 144 of IT Act, one appeal is in respect of proceedings of penalty u/s. 271(1)(b) of IT Act and the remaining one appeal in each case is arising in course of penalty imposed by the AO u/s. 271(1)(c) of IT Act. All these appeals were heard together and are being disposed of by this common order for the sake of convenience.
The grounds raised by the assessee for each appeal are reproduced as under.
“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. Without prejudice to the above, the learned CIT[A] is not justified in refusing to condone the delay in filing the appeal on the ground that the delay in filing the appeal was not supported by any credible and verifiable documentary evidence under the facts and in the circumstances of the appellant's case.
4. The learned CIT[A] is not justified in upholding the penalty of Rs. 1,97,181/- levied u/s. 271[1][c] of the Act under the facts and in the circumstances of the appellant's case.
5. 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.
6. Without prejudice to the above, the penalty levied is highly excess and liable to be reduced substantially.
7. For the above and other grounds that may be urged at the time 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.” “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. Without prejudice to the above, the learned CIT[A] is not justified in refusing to condone the delay in filing the appeal on the ground that the delay in filing the appeal was not supported by any credible and verifiable documentary evidence under the facts and in the circumstances of the appellant's case.
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 especially, the income received for granting development rights is revenue out of agricultural land and is agricultural income, which is exempt from tax.
6. Without prejudice to the above, the learned CIT [A] is not justified in sustaining the assessment of a sum of Rs. 9,66,574/- made by the learned A.O. as long term capital gains on erroneous impression of law and facts that the physical possession is given attracting the provisions of section 2[47][v] of the Act, under the facts and in the circumstances of the appellant's case. 7. Without prejudice to the above, the Fair Market Value adopted by the learned A.O. is very low and requires to be enhanced substantially. 8. Without prejudice to the above, the capital gains assessed is excessive and liable to be reduced substantially. 9. Without prejudice to the right to seek waiver with the Hon'ble CCIT/DG, the appellant denies herself 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. 10. 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.” “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. Without prejudice to the above, the learned CIT[A] is not justified in refusing to condone the delay in filing the appeal on the ground that the delay in filing the appeal was not supported by any credible and verifiable documentary evidence under the facts and in the circumstances of the appellant's case. 4. The learned CIT[A] is not justified in upholding the penalty 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. 5. 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.
Without prejudice to the above, the penalty levied is excessive and liable to be reduced substantially.
7. 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.” “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 without allowing sufficient and real opportunity to the appellant to represent her case before the learned CIT[A] under the facts and in the circumstances of the appellant's case. 3. The learned CIT[A] is not justified in upholding the penalty of Rs. 1,97,181/- 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.” ITA No. 2262/Bang/2018 “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 without allowing sufficient and real opportunity to the appellant to represent her case before the learned CIT[A] under the facts and in the circumstances of the appellant's case. 3. The learned CIT[A] is not justified in upholding the penalty 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 ITA Nos. 2258 to 2263/Bang/2018 Page 5 of 7 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.” “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.
Without prejudice to the above, the learned CIT[A] is not justified in refusing to condone the delay in filing the appeal on the ground that the delay in filing the appeal was not supported by any credible and verifiable documentary evidence under the facts and in the circumstances of the appellant's case.
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.
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 especially, the income received for granting development rights is revenue out of agricultural land and is agricultural income, which is exempt from tax.
6. Without prejudice to the above, the learned CIT[A] is not justified in sustaining the assessment of a sum of Rs. 9,66,574/- made by the learned A.O. as long term capital gains on erroneous impression of law and facts that the physical possession is given attracting the provisions of section 2[47][v] of the Act, under the facts and in the circumstances of the appellant's case.
Without prejudice to the above, the Fair Market Value adopted by the learned A.O. is very low and requires to be enhanced substantially.
Without prejudice to the above, the capital gains assessed is excessive and liable to be reduced substantially.
Without prejudice to the right to seek waiver with the Hon'ble CCIT/DG, the appellant denies herself 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.
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.” 3. At the very outset, it was submitted by ld. AR of assessee that all these impugned six orders passed by ld. CIT(A), Mysore are ex-parte qua the assessee. Thereafter, he submitted that as evident from these orders of ld. CIT(A), only one date of hearing was provided by the ld. CIT(A) to the assessee i.e. on 17.05.2018 and he submitted that although this is true that on this date, the assessee could not appear before ld. CIT(A) for arguing the appeal or for seeking adjournment but still, in the interest of justice, ld. CIT(A) should have provided reasonable opportunity of being heard to assessee instead of deciding the appeal of the assessee ex-parte qua the assessee. He submitted that under these facts, these orders of ld. CIT(A) should be set aside and the matter should be restored back to his file for fresh decision after providing adequate opportunity of being heard to assessee. The ld. DR of revenue supported the orders of CIT(A). 4. We have considered the rival submissions and we find that as per the impugned orders of ld. CIT(A), he has fixed only one date of hearing on 17.05.2018 and thereafter, without fixing any other date, he passed the impugned orders on 28.05.2018 ex-parte qua the assessee. As per para no. 3 of the order of CIT(A), it is seen that these appeals were filed by assessee before CIT(A) belatedly and the assessee has made request to the ld. CIT(A) for condonation of the delay and it has been explained that the appeal was filed after a delay because in the case of Smt. Leelavathi, the spouse of the assessee was ill and passed away also after illness. In the remaining three cases, it has been explained before ld. CIT(A) that the delay was caused because of the demise of the father of Shri Ananda L/R of Late Shri Ninga Shetty. Considering the facts as discussed above, we feel it proper in the interest of justice to restore the matter back to the file of to 2263/Bang/2018 Page 7 of 7 CIT(A) for fresh decision after providing reasonable opportunity of being heard to both sides. We order accordingly. In view of this decision, no adjudication is called for on merit of these appeals at the present stage. 5. In the result, all the six appeals of the assessee are allowed for statistical purposes. Order pronounced in the open court on the date mentioned on the caption page.