Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, BANGALORE BENCH ‘C’, BANGALORE
Before: SHRI A.K.GARODIA, AM (SMC)
This appeal is filed by the assessee which is directed against the order of the ld.CIT(A)-2, Bangalore dated 27-10-2015 for the assessment year : 2005-06
The grounds raised
by the assessee are as under: “1.The order of the authorities below in so far as it is against the appellant is opposed to law, facts, equity, weight of evidence, probabilities and circumstances of the case.
2. The learned authorities below are not justified in determining the income at Rs.5,28,856/- as against the returned Nil income on the facts and circumstances of the case.
3. The learned CIT-(A)-II erred in estimating the market value of the property at Rs. 270/- per square feet as against the fair market value of Rs. 380/- as claimed by the appellant. The learned CIT (A) also erred in not distinguishing the value of the property between the land and the building.
4. The Hon'ble CIT (A) erred in ignoring the fact the fair market value required price adjustment and the property in question was of different dimension and commanded premium due the appropriateness of the size of the property. The value of the property compared by the Hon'ble CIT was for a property which is odd sized plot hence goes on a discounted price.
The learned Assessing officer erred in issuing notice u/s 148 in the name of Ramesh (Individual) and concluding the assessment in the name of the Appellant Ramesh (HUF). The very foundation to the assessment proceedings is bad in law and hence the entire assessment deserved to be set aside.
6. The learned Assessing officer erred in not construing that the notice u/s 143(2) is mandatorily to be issued even ~ assessment proceedings u/s 147. The learned Assessing officer further erred in not issuing the notice within the time limit specified under the. proviso of Sec 143 (2) (ii) and hence the re-assessment proceedings are bad in law. We wish to rely on the judgment given by a). Bangalore Bench of the ITAT in the case of M/s Ashed Properties and Investments Pvt.Ltd., Vs ACIT, Central Circle-1(1). b). Special Bench of Delhi Tribunal in the case of Raj Kumar Chawla & Ors Vs ITO (2005) 94 ITD (Del.)(SB)
Without prejudice, the ld AO erred in not allowing the exemption under section 54 of the IT Act. The appellant has acquired property within the time limit prescribed in the act for claim of exemption u/s 54.
Without prejudice, the disallowance is highly excessive and deserves to be reduced substantially.
The appellant craves leave to add, alter, amend, substitute, change and delete any of the grounds of appeal.
10. For the above and other grounds that may be urged at the time of haring f the appeal, the appellant prayed that the appeals may be allowed and justice rendered”.
3. It was submitted by the ld. AR of the assessee that various legal issues regarding validity of the notice u/s 148 as well as validity of the assessment order without issuing the notice u/s 143(2) etc. were raised before the ld. CIT(A) but he has not decided the legal objections as per para-3.3 of his order by saying that since no such issue has been raised before the AO and nothing has been brought on record to suggest that the assessee has questioned the re-opening of the case or jurisdiction of the AO in assumption of jurisdiction u/s 143(3)r.w.s.147 of the IT Act, 1961, these grounds are not relevant in view of the judgment of the Hon’ble Apex Court in the case of G.K.N. Drive Shaft Ltd Vs CIT as reported in 259 ITR 19. He submitted that the ld. CIT(A) was not proper in saying so because this is a legal issue and it may be raised at any stage and therefore, this issue should have been decided by him.
The ld. DR of the revenue supported the orders of the authorities below.
5. I have considered the rival submissions. I find that as per the written submissions filed by the assessee before the ld. CIT(A) copy available on page No.27-31 of the paper book, this specific objection was raised by the assessee before the ld. CIT(A) that the assessment is not valid because notice u/s 143(2) is not issued in the name of the assessee.
I also find that as per the impugned order of the ld. CIT(A), even this aspect was not decided by the him apart from not deciding the issue in respect of validity of notice issued by the AO u/s 148 of the IT Act, 1961.
In my considered opinion, these are legal objections which may be raised at any stage and therefore, even if such objection is not raised before the AO and raised before the ld. CIT(A) for the first time, he should have decided these issues and since he has not done so, I feel it proper that the entire matter should go back to the file of the ld. CIT(A) for fresh decision.
Accordingly, I set aside the order of the ld. CIT(A) and restore the entire matter back to his file with a direction that he should decide the legal issues which are raised before him and if the assessee succeeds in any one of the legal issues, then no further decision on merit of the addition is called for because in that situation, the assessment itself will not survive but if the assessee fails in respect of legal objections then, the ld. CIT(A) should re-decide the issue on merit afresh. Needless to say, the ld. CT(A) should provide adequate opportunity of being heard to both sides and he should pass a reasoned and speaking order. In view of my above decision, no adjudication is called for regarding merit of the addition at this stage.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open Court on the date mentioned on caption page.