Karnataka High Court
Sri Ayub vs The Joint Commissioner on 22 February, 2024
Author: S G Pandit
Bench: S G Pandit
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NC: 2024:KHC-D:4377-DB
ITA No. 100082 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE K V ARAVIND
INCOME TAX APPEAL NO. 100082 OF 2016
BETWEEN:
SRI. AYUB S/O. SRI. ABDUL KHADAR TAMATGAR,
AGE: 50 YEARS, OCC: TRANSPORTER,
RES: 1, LINES NEAR MORE PLOT
COTTON MARKET, DHARWAD-580001.
...APPELLANT
(BY SRI. NARAYAN G. RASALKAR, ADVOCATE)
AND:
1. THE JOINT COMMISSIONER OF INCOME TAX,
RANGE.2, NAVANAGAR, HUBBALLI.
2. COMMISSIONER OF INCOME TAX (APPEALS),
NAVANAGAR, HUBBALLI.
Digitally signed by
CHANDRASHEKAR
3. THE INICOME TAX APPELLATE TRIBUNAL,
LAXMAN
KATTIMANI
TRIBUNAL, A BENCH,
Date: 2024.02.24
10:54:35 +0530
REP. BY ITS ASSISTANT REGISTRAR,
A BENCH, 2ND FLOOR,
SILVER JUBILEE BUILDING,
KEMPE GOWDA ROAD,
BENGALURU-560009.
...RESPONDENTS
(BY SMT. ROOPA ANVEKAR, ADVOCATE)
THIS INCOME TAX APPEAL IS FILED U/S.260A OF THE INCOME
TAX ACT, 1961 PRAYING TO ALLOW THE APPEAL AND SET ASIDE
THE APPELLATE ORDER DATED 27TH JULY, 2016 PASSED BY THE
INCOME TAX APPELLATE TRIBUNAL, 'A' BENCH BENGALURU BEARING
ITA NO.854/BANG/2015), VIDE ANNEXURE-A, FOR THE
ASSESSMENT YEAR 2010.11 (PREVIOUS YEAR 2009.10) IN THE
INTEREST OF JUSTICE AND EQUITY AND ETC.
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NC: 2024:KHC-D:4377-DB
ITA No. 100082 of 2016
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
K V ARAVIND, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the assessee under Section 260-A of
the Income tax Act, 1961 against the order dated
27.07.2016 passed by the Income Tax Appellate Tribunal,
'A' Bench Bengaluru in ITA No.854/BANG/2015 for the
assessment year 2010-11.
2. The appeal is admitted vide order dated
02.04.2018 to consider the following substantial questions
of law:
i. Whether on the facts and circumstances of
the case, the Income Tax Tribunal is erred
in interpreting and applying the provisions
of Section 40(A)(3) to the facts of the case
without reading into the controlling
provisions of Section 40.A?
ii. Whether on the facts and circumstances of
the case, the Income Tax Tribunal has
erred in reading into the provisions of Rule
6DD of the Income Tax Rules, as an
independent provision and reading it
isolation without imposing the conditions
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prescribed in the first proviso of Section
40(A) (3) of the Income Tax Act, 1961.
3. The assessee is engaged in the business of
transport contract, filed return of income on 12.10.2010.
The assessment was selected for scrutiny by issue of
notice under Section 143(2) of the Act. The assessing
officer completed the assessment by order dated
08.10.2022 by determining the Tax liability.
4. The assessee being aggrieved against order of
assessment preferred appeal before the Commissioner of
Income Tax Appeals. The Appellate Commissioner by order
dated 29.01.2015 dismissed the appeal. The assessee
being further aggrieved preferred appeal before the
Income Tax Appellate Tribunal. The Tribunal by order
dated 27.07.2016 dismissed the appeal by recording
absence of assessee/his representative.
5. Heard learned counsel Shri.Narayan G. Rasalkar
for appellant and learned counsel Smt. Roopa Anvekar for
respondents.
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6. Learned counsel for the appellant submits that
the assessee is assessed in Hubballi. Appeal was preferred
by the assessee before the ITAT Bengaluru Bench through
the representative at Hubballi. It is submitted that date of
hearing was not notified to the assessee or its
representative. Hence, there was no representation on
behalf of assessee. The Tribunal has proceeded to decide
the matter on merits. It is submitted that the Tribunal
committed an error in not granting an opportunity to the
assessee.
7. Per contra, learned standing counsel appearing
for revenue submits that the appeal was preferred by the
assessee, the Tribunal has granted sufficient opportunity
to the assessee. The opportunity not being availed, the
Tribunal having no other alternative has proceeded to
decide the appeal on merits. Thus, prays to dismiss the
appeal.
8. We have perused the impugned order and the
appeal papers. The Tribunal by recording that no
representative has appeared on behalf of the assessee on
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12.07.2016 and also on the previous occasions proceeded
to decide the matter on merits. The nature of disputes
involved for adjudication of the Tribunal are on factual
aspects. The Tribunal being final fact finding authority was
expected to grant sufficient opportunity to the assessee to
submit his case.
9. The Tribunal by proceeding to decide the appeal
on merits without granting sufficient opportunity to the
assessee, it would prejudice the assessee's interest. The
further appeal under Section 260 A of the Act before this
Court would be on substantial questions of law. In the
circumstances, we are of the view that the order of the
Tribunal is not sustainable and the same needs to be set
aside on the ground of violation of principles of natural
justice. Hence, the following:
ORDER
i. Appeal is allowed.
ii. Order in ITA No.854/BANG/2015
dated 27.7.2016 is set aside.
iii. The appeal is remitted to Tribunal
for fresh consideration after
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granting opportunity of hearing to
the assesee/assesee representative
and the revenue in accordance with
law.
iv. No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
RKM
