G. Narayana Rao, Kakinada V. The Assistant Commissioner of Income Tax, Cirlcle-1, , Kakinada

CO 19/VIZ/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5868 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 07-08-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 22-01-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Keywords: Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , HONBLE ACCOUNTANT MEMBER ITA NO. 593 / VIZ /201 8 (ASST. YEAR : 2009 - 10 ) THE ACIT, CIRCLE - 1, KAKINADA. V S . GRANDHI NARAYANA RAO, PROP. : SRI DHANA LAKSHMI OIL & GENER AL MERCHANTS, D.NO.27 - 9 - 14/1, PU LAVARTHY STREET, KAKINADA. PAN NO. ABQPG 1242 D (APPELLANT) (RESPONDENT) C.O.NO. 19/VIZ/2019 (ARISING OUT OF ITA NO. 593 / VIZ /201 8) (ASST. YEAR : 2009 - 10 ) GRANDHI NARAYANA RAO, PROP. : SRI DHANA LAKSHMI OIL & GENERAL MERCHANTS, D.NO. 27 - 9 - 14/1, PULAVARTHY STREET, KAKINADA. VS. THE ACIT, CIRCLE - 1, KAKINADA. PAN NO. ABQPG 1242 D (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G.V.N. HARI ADV OCATE . DEPARTMENT BY : SMT. SUMAN MALIK SR. DR DATE OF HEARING : 29 / 0 7 /201 9 . DATE OF PRONOUNCEMENT : 07 / 0 8 /201 9 . O R D E R PER V. DURGA RAO, JUDICIAL MEMBER TH IS APPEAL BY THE REVENUE AND THE CROSS OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF COMMISSIONER OF 2 ITA NO. 593/VIZ/2018 C.O.NO.19/VIZ/2019 ( G. NARAYANA RAO ) INCOME TAX (APPEALS) - 3 , VISAKHAPATNAM , DATED 29 /0 6 /201 8 FOR THE ASSESSMENT YEAR 2009 - 10 . 2. WHEN THIS APPEAL IS TAKEN UP FOR HEARING, LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE DEPARTMENT HAS TO FILE TWO SEPARATE APPEALS AGAINST TWO SEPARATE ASSESSMENT ORDERS , BUT FILED A SINGLE APPEAL, WHICH IS NOT MAINTAINABLE. 3. W E FIND THAT THERE IS A DELAY OF 16 DAYS IN FILING THE APPEAL . THE REVENUE HAS FILED THE CONDONATION APPLICATION FOR 11 DAYS . THIS DEFECT WAS BROUGHT TO THE NOTICE OF THE LD.DR ON 31/01/2019, WHO SOUGHT TIME TO RECTIFY THE FORM NO.36. ONE MORE DEFECT IS NOTICED IN THIS APPEAL IS THAT THE ASSESSING OFFICER HAS PASSED THE ORDER U/SEC. 143(3) ON 30/12/2010 AND ALSO PASSED ORDER U/SEC. 143(3) R.W.S. 147 ON 18/06/2014 , BY WHICH, T HE REVENUE HAS PREFER RED TH IS APPEAL AGAINST BOTH THE ORDERS. SO FAR AS ORDER U/SEC. 143(3) PASSED BY THE ASSESSING OFFICER IS CONCERNED, THE LD.CIT(A) DELETED THE ADDITION BY OBSERVING THAT THE APPROACH OF THE ASSESSING OFFICER IS NOT JUSTIFIED. SO FAR AS ORDER U/SEC.143(3) R.W.S. 147 IS CONCERNED, IT IS ONLY MERE CHANGE OF OPINION AND BY FOL L O W ING THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF CIT VS. KELVINATOR INDIA LTD. [(320 ITR 561 (SC)] HAS HELD THAT NOTICE IS INVALID AND THE REASSESSMENT PROCEEDINGS ARE VOID A B INITIO . THESE TWO SEPARATE ASSESSMENT ORDERS PASSED BY THE ASSESSING 3 ITA NO. 593/VIZ/2018 C.O.NO.19/VIZ/2019 ( G. NARAYANA RAO ) OFFICER, THOUGH LD. CIT(A) HAS PASSED COMBINED ORDER DATED 29/06/2018 , T HE DEPARTMENT HAS TO FILE TWO SEPARATE APPEALS BEFORE THE TRIBUNAL INSTEAD OF THAT, ONE APPEAL HAS BEEN FILED. THIS WAS BROUGHT TO THE NOTICE OF THE LD.DR ON 31/01/2019 AND SUBSEQUENTLY ON FOUR OCCASIONS, LD.DR HAS SUBMITTED THAT THE PRESENT APPEAL FILED BY THE DEPARTMENT WOULD BE WITHDRAWN WITH LIBERTY TO FILE TWO SEPARATE APPEALS , BUT NEITHER WITHDRAWN THE APPEAL NOR FILED SEPARATE APPEALS , AND EVEN NOT FILED PROPER CONDONATION APPLICATION. IN VIEW OF THE ABOVE, THE APPEAL FILED BY THE DEPARTMENT IS DISMISSED IN LIMINE. 4 . SO FAR AS CROSS OBJECTION IS CONCERNED, THE ASSESSEE HAS RAISED A GROUND THAT THE REVENUE HAS TO FILE TWO SEPARATE APPEALS AGAINST THE TWO SEPARATE ASSESSMENT ORDERS. AS WE HAVE DECIDED THIS ISSUE IN REVENUES APPEAL, THIS CROSS OBJECTION FILED BY THE ASSESSEE IS PARTLY ALLOWED. 5. IN THE RESU LT, APPEAL FILED BY THE REVENUE IS DISMISSED AND THE CROSS OBJECTION FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON TH IS 0 7 T H DAY OF AUGUST , 201 9 . S D / - S D / - ( D.S. SUNDER SINGH ) ( V. DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 0 7 T H AUGUST , 201 9 . 4 ITA NO. 593/VIZ/2018 C.O.NO.19/VIZ/2019 ( G. NARAYANA RAO ) VR/ - COPY TO: 1. THE ASSESSEE GRANDHI NARAYANA RAO, PROP. : SRI DHANA LAKSHMI OIL & GENERAL MERCHANTS, D.NO.27 - 9 - 14/1, PULAVARTHY STREET, KAKINADA. 2. THE REVENUE THE ACIT, CIRCLE - 1, KAKINADA. 3. THE PR. CIT (CENTRAL), VISAKHAPATNAM. 4. THE CIT(A) - 3, VISAKHAPATNAM. 5. THE D.R . , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.