SMT KAVITHA TILOK ,BANGALORE vs. THE INCOME TAX OFFICER WARD-9(1), BANGALORE

O R D E R Per Shri A.K. Garodia, Accountant Member Both theseappeals are filed by the assessee which are directed against two separate orders of ld. CIT(A)-1, Bangalore both dated 30.01.2018 for Assessment Years 2006-07 and 2009-10. Both these appeals were heard together and are being disposed of by way of this common order for the sake of convenience.

by the assessee for Assessment Year 2006-07 in are as under. “1. THE Learned Assessing Officer has erred in passing the order in the manner it is passed by HER. The impugned order being bad in Law, Void ab intio and required to be quashed.

2. IN any case, the conditions precedent for the issue of Notice U/s.148 of the Act being absent, the re-opening becomes bad in law and consequently the order passed being is also bad in Law and is required to be quashed.

3. IN any case and the without prejudice the order having been passed in Total disregard of and in violation of the principles of Natural Justice, makes the order bad in Law and liable to be quashed.

4. IN any case and the without further prejudice. the Assessing Officer has erred in : a) Taxing the entire sale proceeds as Income of the Appellent. b) Has not considered the fact that the appellent has earned Long- Term Capital gains on sale of Shares. c) Without any basis, held the transaction in Shres as fraudulent. d) Holdong that the provisions of Sec.68 of the Act, are applicable to this case.

6. THE Assessing Officer has erred in making various observations and coming to various conclusions, without any proof or evicence. AND such observations and conclusions need to be ignored, 7. THE appellant denies the liability to pay interest. THE interest having been levied erroneously is to be deleted.

by the assessee for Assessment Year 2009-10 in are as under. “1. THE Learned Assessing Officer has erred in passing the order in the manner it is passed by HER. The impugned order being bad in Law, Void ab intio and required to be quashed.

2. IN any case, the conditions precedent for the issue of Notice U/s.148 of the Act being absent, the re-opening becomes bad in law and consequently the order passed being is also bad in Law and is required to be quashed.

3. IN any case and the without prejudice the order having been passed in total disregard of and in violation of the principles of Natural Justice, makes the order bad in Law and liable to be quashed.

5. THE appellant is regularly dealing in shares and this transaction has also to be accepted as such. 6. THE Assessing Officer has erred in making various observations and coming to various conclusions, without any proof or evicence. AND such observations and conclusions need to be ignored, 7. THE appellant denies the liability to pay interest. THE interest having been levied erroneously is to be deleted. 8. IN view of the above and other grounds to be adduced at the time of hearing it is requested that the impugned order be quashed and the returned income from Long-Term capital gains be accepted. The assessment of the amount U/s.68 be deleted and the interest also to be deleted.”

4. At the very outset, it was submitted by ld. AR of assessee that as per the noting of CIT (A) in Para 2 of his order, although three notices were sent by him but none of these notices could be served on assessee and all these notices were returned by postal authorities with remarks that “addressee left and returned to the sender”. He submitted that during the relevant period, the building was under renovation and assessee was residing just opposite to that building and all the other postal material was being served by postal department on the assessee and the order of CIT (A) was also duly served on the assessee but the notices were not served for the reasons not known to the assessee. He submitted that in the interest of justice, the matter may be restored back to the file of CIT(A) for fresh decision after providing adequate opportunity of being heard to the assessee and if this is done, he undertakes that proper compliance will be made before CIT(A). The ld. DR of revenue supported the order of CIT(A) in both the years.

5. I have considered the rival submissions. I find that as per para 2 of the order of CIT(A), three notices were sent by him on 01.12.2017, 02.12.2017 and 04.12.2017 but these notices were returned back by postal authorities with remarks “addressee left and returned to the sender”. Hence it is apparent that none of the notices were actually served on the assessee. Regarding non- service of notice, the ld. AR of assessee submitted that during the relevant period, the assessee was residing just opposite to that building and although other postal articles were being served including the order of CIT (A) these notices were returned back for the reason not known to the assessee. Under these facts, I feel it proper that in the interest of justice, the matter should go back to the file of CIT (A) for fresh decision after providing adequate opportunity of being heard to assessee. I order accordingly in both years. In view of this decision, no adjudication is called for regarding the merit of the case at the present stage in both the years.