Sri G Sukender Reddy, Hyderabad V. ITO, Ward 8(2), Range-8, Hyderabad

ITA 1036/HYD/2013

• Counselvise Citation: 103622514 RSA 2013
• Duration Of Justice: 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-10-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 01-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A V RAGHURAM SHRI R LAXMAN
• Keywords: Principle of natural justice; Additional evidence
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA NO. 1036/HYD/2013 ASSESSMENT YEAR : 2006-07 SRI G. SUKENDER REDDY, BY HIS LR SRI SUJNEET REDDY, HYDERGUDA (V), RAJENDRANAGAR (M), HYDERABAD. PAN: AHOPG7326C VS. INCOME TAX OFFICER, WARD 8(2), HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI A.V. RAGHURAM REVENUE BY : SHRI R. LAXMAN DATE OF HEARING : 21-10-2013 DATE OF PRONOUNCEMENT : 23-10-2013 ORDER PER B. RAMAKOTAIAH, A.M.: THIS IS AN APPEAL BY ASSESSEE DIRECTED AGAINST TH E ORDER OF THE CIT(A)-III, HYDERABAD, DATED 19/04/2013 FOR THE ASSESSMENT YEAR 2006-07. 2. IN THE COURSE OF PRESENT PROCEEDINGS, LEARNED CO UNSEL FILED AN AFFIDAVIT BY THE LEGAL HEIRS OF SHRI LATE G. SUKEND ER REDDY ALONG WITH THE DEATH CERTIFICATE ISSUED BY GREATER HYDERABAD M UNICIPAL CORPORATION. SHRI G. SUKENDER REDDY DIED ON 2 ND MAY, 2013 AND, HENCE, OTHER LEGAL HEIRS AUTHORIZED SHRI G. SUJNEET REDDY TO PREFER THE APPEAL AND ACCORDINGLY LEGAL HEIRS ARE TAKEN ON RECORD AS COPY OF THE AFFIDAVIT WAS ALSO FURNISHED TO THE LEARNED DR. 2 ITA NO. 1036/HYD/2013 SRI G. SUKENDER REDDY 3. ASSESSEE IS AGGRIEVED AGAINST THE ACTION OF THE LEARNED CIT(A) IN DISMISSING THE APPEAL WITHOUT GIVING AN OPPORTU NITY TO EXPLAIN THE ALLEGED DELAY IN FILING THE APPEAL. ASSESSEE HAS RA ISED FOUR GROUNDS OF APPEAL ON THE ISSUE OF ALLEGED DELAY IN FILING O F THE APPEAL AND ON DENIAL OF NATURAL JUSTICE. 4. BRIEFLY STATED, ASSESSEE IS AN INDIVIDUAL, FILE D RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION DECLARING TOTAL IN COME OF RS. 1,94,661/- UNDER THE HEAD CAPITAL GAINS. IN THE S CRUTINY ASSESSMENT, THE AO NOTICED THAT ASSESSEE HAD SHOWN THE AMOUNT O F RS. 39,45,657/- AS SALE PROCEEDS RECEIVED ON SALE OF LA ND AND EXAMINED THE DEPOSITS MADE IN THE BANK. SINCE CO-RELATION BE TWEEN THE SALE PROCEEDS AND DEPOSITS IN THE BANK WAS NOT ACCEPTABL E TO THE AO, HE BROUGHT THE DEPOSITS IN THE BANK ACCOUNT AT RS. 18, 55,339/- AS INCOME OF ASSESSEE AND DENIED THE CLAIM OF EXEMPTIO N U/S 54E OF THE IT ACT, BY PASSING AN EX-PARTE ORDER U/S 144 OF TH E IT ACT. 5. BEFORE THE LEARNED CIT(A), ASSESSEE SUBMITTED TH AT HE MET WITH AN ACCIDENT AND FILED ADDITIONAL EVIDENCE IN SUPPOR T OF THE CONTENTIONS. THE LEARNED CIT(A) REMANDED THE MATTER TO THE AO, WHO VIDE REPORT ON 16-05-2012 SUBMITTED TO THE CIT(A) T HAT THERE IS NO CO- RELATION BETWEEN THE DEPOSITS AND SALE PROCEEDS, A ND, THEREFORE, ADDITIONAL EVIDENCE COULD NOT BE ADMITTED AS ASSESS EE HAD NOT COOPERATED DURING THE COURSE OF ASSESSMENT PROCEEDI NGS. THIS REPORT OF THE AO WAS FORWARDED BY THE JCIT, RANGE 8, HYD ERABAD VIDE LETTER DATED 15-06-2012 AND VIDE LETTER DATED 20-06 -2012, ASSESSEE WAS ASKED TO SUBMIT HIS COMMENTS ON THE REMAND REPO RT BY THE PS, O/O CIT(A)-III, HYDERABAD. HOWEVER, THE LEARNED CIT (A) FOR THE REASONS BEST KNOWN TO HIM CONSIDERED THAT ASSESSEE HAD FILED APPEAL BELATEDLY AND DISMISSED THE APPEAL IN-LIMINE . IN ARRIVING AT THE SAID CONCLUSION, VIDE PARA 2, THE CIT(A) STATES THAT ASS ESSEE IN THE RELEVANT COLUMN IN FORM NO. 35 HAS MENTIONED THE IM PUGNED ORDER WAS SERVED ON 06-05-2009. HE ALSO STATES THAT THE A PPEAL APPEARS TO 3 ITA NO. 1036/HYD/2013 SRI G. SUKENDER REDDY HAVE BEEN FILED WITHIN THE TIME LIMIT OF 30 DAYS. H OWEVER, VIDE PARA 7, HE EXTRACTED THE PHOTO COPY OF EMS SPEED POST RECEI PT THROUGH WHICH ASSESSMENT ORDER, DEMAND NOTICE, CHALLAN AND NOTICE U/S 271(1)(C) HAD BEEN DISPATCHED TO ASSESSEE. ACCORDING TO THE C IT(A) THIS ORDER COULD HAVE BEEN SERVED IMMEDIATELY AS IT WAS SENT B Y SPEED POST AND, THEREFORE, APPEAL WAS TO BE FILED ON 07-02-200 9 MAY BE ON THE REASON THAT THE SPEED POST COULD HAVE BEEN SERVED O N THE SAME DAY. VIDE PARA 9, THE CIT(A) EXTRACTED COPY OF THE ASSES SMENT ORDER ENCLOSED TO THE APPEAL MEMO TO RELY THAT DATE OF RE CEIPT WAS MENTIONED AS 06-05-2007. HE DOUBTS THAT WHEN THE OR DER WAS PASSED ON 15-12-2008 HOW THIS DATE COULD BE 06-05-2007, TH EREFORE, CAME TO THE CONCLUSION VIDE PARA 10 THAT THE ASSESSMENT ORD ER WAS DULY PASSED AND SERVED ON 07-01-2009 AND THE APPEAL FILE D ON 12-05-2009 WAS BELATED. SINCE THERE IS NO APPLICATION FOR COND ONATION OF DELAY, THE CIT(A) DISMISSED THE APPEAL IN-LIMINE. 6. AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE US. 7. THE LEARNED COUNSEL FOR ASSESSEE SUBMITTED THAT THE LEARNED CIT(A) ERRED IN CONSIDERING THE DATES AND DECIDED THE APPEAL ON PRESUMPTIONS AND SURMISES WITHOUT GIVING ANY OPPORT UNITY TO ASSESSEE TO EXPLAIN. IT WAS SUBMITTED THAT AT THE T IME OF ASSESSMENT, ASSESSEE WAS NOT WELL HAVING MET WITH AN ACCIDENT A ND, THEREFORE, ASSESSMENT ORDER WAS PASSED U/S 144 AND THAT ASSESS EE FILED DETAILS BEFORE THE LEARNED CIT(A), WHICH WERE SENT TO THE A O FOR REMAND VIDE LETTER DATED 05-03-2012. ASSESSEE WAS ALSO ASKED TO OFFER HIS COMMENTS ON THE REMAND REPORT RECEIVED FROM THE AO VIDE LETTER DATED 20-06-2012. THE LEARNED COUNSEL CONTENDED THA T WITHOUT CONSIDERING THE ISSUES ON MERIT AND WITHOUT GIVING AN OPPORTUNITY TO EXPLAIN THE SO-CALLED DELAY IN FILING THE APPEAL, T HE LEARNED CIT(A) DISMISSED THE APPEAL IN LIMINE, WHICH IS NOT PROPER . HE, THEREFORE, SUBMITTED THAT THE MATTER CAN BE REMANDED TO THE CI T(A) FOR FRESH EXAMINATION. WITH REFERENCE TO THE DATE OF RECEIPT OF ASSESSMENT 4 ITA NO. 1036/HYD/2013 SRI G. SUKENDER REDDY ORDER, THE LEARNED COUNSEL SUBMITTED THAT ONLY WHEN THE NOTICE OF PENALTY U/S 271(1)(C) WAS RECEIVED LATER, ASSESSEE OBTAINED COPIES OF THE ASSESSMENT ORDER ON 06-05-2009 AND THIS DATE ME NTIONED ON THE ASSESSMENT ORDER WAS CONSIDERED BY THE LEARNED CIT( A) AS 06-05- 2007. IT WAS SUBMITTED THAT ASSESSEE OBTAINED THE C OPY OF THE ORDER ON 06-05-2009 AND, ACCORDINGLY, THE APPEAL WAS FILE D ON 12-05-2009, THEREFORE, THERE WAS NO DELAY IN FILING THE APPEAL, AS ALLEGED BY THE CIT(A). 8. THE LEARNED DR, HOWEVER, RELIED ON THE ORDER OF THE LEARNED CIT(A). 9. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIE S AND PERUSED THE RECORD PLACED BEFORE US. WITHOUT GOING INTO THE MERITS OF THE ORDER OF THE CIT(A), WE ARE OF THE OPINION THAT THE ORDER HAS TO BE SET ASIDE AS ASSESSEE WAS NOT GIVEN ANY OPPORTUNITY TO EXPLAI N THE SO-CALLED SERVICE OF THE ORDER AS CONSIDERED BY THE CIT(A). J UST BECAUSE THE ASSESSMENT ORDER WAS DISPATCHED ON 07-01-2009 THROU GH EMS SPEED POST, IT CANNOT BE STATED THAT THE ORDER WAS SERVED ON THE SAME DAY AS CONSIDERED BY THE LEARNED CIT(A), AS ASSESSEE IS RESIDING IN HYDERGUDA VILLAGE, RR DIST, WHICH IS OUTSKIRTS OF T HE CITY. THERE IS NO ACKNOWLEDGMENT AS SUCH BY ASSESSEE HAVING RECEIV ED THE ORDER ON THAT DATE OR IMMEDIATELY THERE AFTER. IT IS TO BE ENQUIRED WITH THE POSTAL DEPARTMENT WHETHER THE ORDER WAS ACTUALLY SE RVED AS CONSIDERED BY THE CIT(A) ON 07-01-2009 OR SERVED/ R ECEIVED ON 06- 05-2009 AS ASSERTED BY ASSESSEE IN THE APPEAL MEMO IN THE RELEVANT COLUMN. THIS ASPECT, HOWEVER, REQUIRE FURTHER VERIF ICATION. EVEN THEN AN OPPORTUNITY COULD HAVE BEEN GIVEN TO ASSESSEE TO FILE CONDONATION APPLICATION FOR DELAY, IF ANY IN FILING THE APPEAL BEFORE DISMISSING THE APPEAL. NO OPPORTUNITY WAS GIVEN ON THIS ASPECT EVE NTHOUGH THE RECORD INDICATE THAT ASSESSEES ADDITIONAL EVIDENCE WAS SENT TO AO FOR VERIFICATION ON REMAND. HAVING OBTAINED THE REM AND REPORT, IT IS ALSO INCUMBENT ON THE CIT(A) TO CONSIDER THE ISSUE ON MERITS. FOR 5 ITA NO. 1036/HYD/2013 SRI G. SUKENDER REDDY THESE REASONS, THE APPEAL IS RESTORED TO THE FILE O F THE CIT(A) TO CONSIDER THE SAME AFRESH AND THE GROUNDS RAISED BY ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. NEEDLE SS TO SAY, ASSESSEE SHOULD BE GIVEN DUE OPPORTUNITY OF HEARING IN THE M ATTER. 10. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 23 RD DAY OF OCTOBER 2013. SD/- SD/- (ASHA VIJAYARAGHAVAN) (B. RAMAK OTAIAH) JUDICIAL MEMBER ACCOUNT ANT MEMBER HYDERABAD, DATED: 23 RD OCTOBER, 2013. KV COPY TO:- 1) SRI G. SUKENDER REDDY, C/O A.V. RAGHU RAM, ADVOC ATE, 610, BABUKHAN ESTATE, BASHEERBAGH, HYDERABAD 500 001. 2) ITO, WARD 8(2), IT TOWERS, 8 TH FLOOR, AC GUARDS, HYDERABAD. 3) CIT(A)-III, HYDERABAD. 4) CIT-II, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A .T., HYDERABAD.