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Income Tax Appellate Tribunal, SMC “A” BENCH : BANGALORE
Before: SHRI A.K. GARODIA
Date of hearing : 08.08.2016 Date of Pronouncement : 08.09.2016 O R D E R This is an appeal by the assessee directed against the order of the CIT (Appeals)-5, Bengaluru dated 10.02.2016 for the assessment year 2005-06.
The grounds raised by the assessee are as under:-
“1. The order of the learned Income Tax Officer and CIT (Appeals) is against law and facts. 2. Service of notice/order: i. the learned Income Tax Officer and CIT(Appeals) erred in ignoring the basic requisite of issue of a Notice U/S 143(2) of the Income Tax Act/ Notice U/S 144 of the Income Tax Act had not been complied with although the Income Tax Officer stated in the order that such a notice has been "issued". ii. The learned CIT (Appeals) erred in ignoring the fact that the assessment order was served on 13-8-2013 well beyond the statutory date for completion of assessment. Date of notice U/S 148 11/03/2010 Date of order 27/12/2010 Date of receipt of order 13/09/2013 iii. The learned CIT (Appeals) erred in not adjudicating on the ground relating to non-service of notice U/S 143(2)/144 and assessment order within the statutory period.
3. The learned Income Tax Officer and CIT (Appeals) erred in holding that a record of oral portion required registration (Para 3) and hence not a valid document.
4. The learned Income Tax Officer and CIT (Appeals) erred in holding that a property (HUF owned only one house property) which cannot be partitioned by metes and bounds but by specification of share amounted to a i. not a valid partition as property needs to be partitioned by metes and bounds, and ii. that this amounted to a partial portion (Para 4(i)); the learned Income Tax Officer and CIT (Appeals) ignored the definition of the relevant terms in the section cited- Section 171 (9) Explanation.
5. The learned Income Tax Officer and CIT(Appeals) erred in holding that non-registration with the sub-registrar was mandatory and the statement made thereto amounted to 'an admission' that no partition was made.
6. The learned Income Tax Officer and CIT (Appeals) erred in relying on the provision relating the partial partition which is not the case herein.
The learned Income Tax Officer having not issued any hearing notice erred in taxing a sum of Rs. 1,20,000/- without asking for any explanation ; the explanation was available in records of earlier proceedings where it was stated that the investment had been made by Mrs. Gita Thyagaraj out of her Sridhan.
The learned Income Tax Officer erred in levying interest u/s 234B when the income was subject to tax deduction at source and the learned CIT (Appeals) erred in ignoring the ground. 9. Addition of refunds not received by the minors The learned Income Tax Officer erred in adding the following sum on the assumption that refunds of TDS in the minor's hand had been granted when the minors had not filed the return and not claimed any such refund or any such refund was ever issued. This was also made clear in a letter addressed to the Assessing officer. Particulars TDS Interest T. Somaskanda 11,720 3,809 T. Karthikeyan 11,720 3,809 Total 23,440 7,618
It was submitted by the ld. AR of assessee that assessee’s ground No.1 is general and he further submitted that the issue regarding non- issues of notice u/s. 143(2) of the Act and time barring of the assessment order were raised before the CIT (Appeals) also but there is no decision of ld. CIT (Appeals) on these aspects of the matter and hence, the entire matter should be restored back to the file of the ld. CIT (Appeals) for fresh decision.
The ld. DR of revenue supported the order of ld. CIT (Appeals).
I have considered the rival submissions. I find that in para 5 of his order, the ld. CIT(Appeals) has noted and reproduced the contentions in the assessee’s letter dated 8.2.2016 containing written submissions filed before him and in that, it is specifically submitted by the assessee before the CIT(Appeals) that assessee had not received any of the notices u/s. 143(2) or 142(1) or 144, but in spite of that, in the subsequent paras of the order of ld. CIT(Appeals), there is no decision of ld. CIT(Appeals) on this aspect of the matter. It is also the claim of assessee that the assessment order was time barred because the same was served on the assessee on 13.8.2013 which is well beyond the time limit prescribed under the Act. On this aspect also, there is no decision of CIT (A). Hence I feel it proper to restore the entire matter back to the file of ld. CIT (Appeals). I order accordingly. The entire matter is restored to the file of ld. CIT(Appeals) with a direction that he should first decide on this aspect as to whether any valid notice u/s. 143(2) was issued and served by the AO on the assessee and if it is found that no such valid notice was issued and served on the assessee within the prescribed time, then the assessment u/s. 143(3) or 144 is not valid and no other aspect of the matter will be required to be decide again. But if it is found that proper and valid notice u/s. 143(2) was served on the assessee within the prescribed time, then the CIT (Appeals) has to decide this aspect of the matter as to whether assessment order is time barred or not and if it is found that the same is not time barred also, then he should decide the issue afresh regarding the validity of various additions made by the AO.
In the result, the appeal of the assessee is allowed for statistical purposes.
Pronounced in the open court on this 8th day of September, 2016.