Subhash Pawar, Sec'bad, Hyderabad V. ITO, Ward-11(3), Hyd, Hyderabad

ITA 1054/HYD/2015

• Counselvise Citation: 105422514 RSA 2015
• Duration Of Justice: 4 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 12-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K E SUNIL BABU
• Assessee Lawyers: SNEHAL THAKKAR
• Section: 143(3); 69; 154; 15

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER ITA NO. 1054HYD/2015 ASSESSMENT YEAR: 2008-09 SUBHASH PAWAR, SECUNDERABAD PAN ADFPP 2913 H VS. INCOME-TAX OFFICER, WARD - 11(3), HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SNEHAL THAKKAR REVENUE BY : SHRI K.E. SUNIL BABU DATE OF HEARING : 20-11-2015 DATE OF PRONOUNCEMENT : 18-12-2015 O R D E R PER S. RIFAUR RAHMAN, A.M.: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST T HE ORDER OF CIT(A)-5, HYDERABAD DATED 29/05/2015 FOR THE AY 200 8-09. 2. BRIEFLY THE FACTS OF THE CASE ARE, THE ASSESSEE, AN INDIVIDUAL, ALSO PARTNER IN TWO FIRMS, NAMELY, I) M/S SHRI SAI BUILDERS AND II) M/S S.S. ENTERPRISES AND WAS DERIVING INCOMES FROM INTE REST AND REMUNERATION FROM SUCH FIRMS, HAD FILED RETURN OF I NCOME ON 27/03/09 ADMITTING A TOTAL INCOME OF RS. 79,060/-. ASSESSMEN T WAS FINALIZED DETERMINING THE TOTAL INCOME AT RS. 11,21,060, AFTE R ALLOWING DEDUCTION OF RS. 1,00,000/ UNDER CHAPTER VIA. THE ADDITION WAS MADE MAINLY FOR THE CASH DEPOSITS DURING THE YEAR. THE ASSESSEE COULD NOT EXPLAIN AND NOT PROPERLY APPEARED IN THE ASSESSMENT PROCEEDINGS. HENCE, THE ORDER WAS PASSED U/S 143(3) R.W.S. 144 OF THE INCOME-TAX ACT, 1961 (IN SHORT ACT). 3. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) AND RAISED THE FOLLOWING G ROUNDS: 2 ITA NO. 1054 /HYD/2015 SUBHASH PAWAR 1. AGAINST THE ADDITION OF RS. 10,42,000 MADE U/S 69 OF THE ACT. 2. AGAINST THE ASSESSMENT ORDER PASSED U/S 143(3) R EAD WITH SECTION 144 OF THE ACT DISREGARDING THE COMPLIANCES FOR THE NOTICES ISSUED AND FOR NOT CONSIDERING THE INFORMAT ION FURNISHED DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. 4. THE CIT(A), ADJUDICATED THE FIRST GROUND AND SU STAINED THE ADDITION TO THE EXTENT OF RS. 8,67,000 AS AGAINST T HE ADDITION OF RS. 10,49,000 MADE BY THE AO. 5. AS REGARDS THE SECOND ISSUE AGAINST THE ORDER PA SSED U/S 143(3) READ WITH SECTION 144, THE CIT(A) HELD THAT THE ASSESSEE HAD NOT STRESSED THE OTHER GROUNDS BEFORE HIM. 6. THE ASSESSEE FILED RECTIFICATION PETITION U/S 15 4 OF THE ACT WITH THE CIT(A) FOR NOT ADJUDICATING THE OTHER GROUNDS A ND ADDITIONAL GROUNDS MAINLY ON THE ISSUE OF ORDER PASSED U/S 143 (3) R.W.S. 144. THE SAME WAS REJECTED BY THE CIT(A) VIDE ORDER U/S 154 DATED 16/09/15. 7. AGGRIEVED BY THE ORDER OF CIT(A) PASSED ON THE O RDER OF AO U/S 143(3) R.W.S. 144 OF THE ACT, THE ASSESSEE IS IN AP PEAL BEFORE US. 8. ASSESSEE HAS RAISED AS MANY AS 9 GROUNDS OF APPE AL. THE FIRST GROUND IS PERTAINING TO THE ADDITION OF RS. 10,42,0 00/- AND GROUND NOS. 2 TO 9 ARE PERTAINING TO LEGALITY OF THE ORDER PASSED BY THE AO U/S 143(3) READ WITH SECTION 144 OF THE ACT. 9. IN ADDITION TO THE ABOVE, THE ASSESSEE HAS FILED A PETITION TO ADMIT THE ADDITIONAL GROUND OF APPEAL WHICH IS BASE D ON THE LEGALITY OF THE ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 144 O F THE ACT, AS GROUND NO. 10, WHICH IS AS UNDER: THAT ASSESSMENT IS BAD IN LAW SINCE NO VALID NOTICE WAS SERVED U/S 142(1)IN AS MUCH AS THE SAME WAS SERVED ON THE DAY OF DATE OF HEARING WHICH FOLLOWS THAT IN THE ABSENCE O F SHOW CAUSE 3 ITA NO. 1054 /HYD/2015 SUBHASH PAWAR NOTICE IN TERMS OF PROVISO TO SECTION 144(1), THE A SSESSMENT IS BAD IN LAW. TO RAISE THE ABOVE GROUND, THE ASSESSEE HAS PLACED RELIANCE ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F NTPC VS. CIT [1998] 229 ITR 393 (SC). 10. AFTER HEARING BOTH THE PARTIES, WE ADMIT THE SA ID ADDITIONAL GROUND AS IT IS PURELY A LEGAL GROUND AND GOES TO T HE ROOT OF THE MATTER, RELYING ON THE DECISION OF THE HONBLE SUPR EME COURT IN CASE OF NTPC ( SUPRA). 11. THE LD. AR SUBMITTED THAT THE CIT(A) HAD DISMIS SED THE GROUND RAISED BY THE ASSESSEE ON THE VALIDITY OF THE ASSES SMENT U/S 143(3) R.W.S. 144 AS NOT PRESSED, WHICH IN FACT WAS PRESSE D BY THE ASSESSEE AND STAND OF THE CIT(A) ON THIS ISSUE WAS NOT CORRE CT AND AGAINST FACTS. LD. AR SUBMITTED THAT NOTICE U/S 143(2) WAS SERVED ON THE ASSESSEE POSTING THE CASE ON 07/10/09 AND ON THE DA TE OF HEARING THE AR OF THE ASSESSEE APPEARED BUT THE AO INFORMED THE AR SINCE IT WAS FIRST NOTICE THE CASE WILL BE POSTED AGAIN. THE LD. AR SUBMITTED THAT AOS STATEMENT IN THE ORDER U/S 143(3) R.W.S. 144 THAT ASSESSEE DID NOT COMPLY WITH THE NOTICE WAS NOT CORRECT. LD. AR SUBMITTED THAT NO VALID NOTICE WAS SERVED ON THE ASSESSEE U/S 142( 1) RENDERING THE ORDER PASSED BY THE AO U/S 143(3) R.W.S. 144 BAD IN LAW, ALSO NO SHOW CAUSE NOTICE WAS SERVED ON THE ASSESSEE IN TER MS OF PROVISO TO SECTION 144(1). HE FURTHER SUBMITTED THAT THE AO S HOULD NOT HAVE ARBITRARILY REJECTED THE DETAILS FURNISHED BY THE A SSESSEE BY MERELY STATING THAT NO DETAILS WERE FILED, WAS NOT BASED O N FACT OF THE CASE, THEREFORE, THE ORDER OF AO IS NOT IN TUNE WITH THE FACTS. 12. THE LD. DR, ON THE OTHER HAND, RELIED UPON THE ORDERS OF REVENUE AUTHORITIES. 13. THE ASSESSEE HAS RAISED GROUNDS 2 TO 9 ON LEGAL ITY OF THE ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 144 OF TH E ACT AND RAISED GROUND NO. 10 AS ADDITIONAL GROUND ON THE SAME ISSU E. SINCE THERE IS 4 ITA NO. 1054 /HYD/2015 SUBHASH PAWAR DISPUTE ON THIS MATTER WHETHER THE ASSESSEE HAD IN FACT PRESSED FOR ADJUDICATION BEFORE THE CIT(A) BUT THE CIT(A) HAD D ISMISSED ALL THE GROUNDS RAISED BY THE ASSESSEE ON LEGALITY OF THE A SSESSMENT U/S 143(3) R.W.S. 144 AS NOT PRESSED. THEREFORE, CONSID ERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF NAT URAL JUSTICE, WE SET ASIDE THE ORDER OF CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO DECIDE THE APPEAL ON MER ITS AND IN ACCORDANCE WITH LAW AFTER PROVIDING REASONABLE OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE IN THE MATTER. 14. AS WE HAVE DECIDED THE LEGAL GROUND PARTLY IN F AVOUR OF ASSESSEE, THERE IS NO NEED TO DISPOSE OFF THE GROUN D TAKEN BY ASSESSEE ON THE ADDITION SUSTAINED BY THE CIT(A). 15. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 18 TH DECEMBER, 2015. SD/- SD/- (P. MADHAVI DEVI) (S. RIFAUR RAHMAN) JUDICIAL MEMBER A CCOUNTANT MEMBER HYDERABAD, DATED: 18 TH DECEMBER, 2015 KV COPY TO:- 1) SUBHASH PAWAR, C/O CA SNEHAL THAKKAR, SA THAKKAR ASSOCIATES, CAS, 401 MANBHUM PRESTIGE, 1-10-1/12, ASHOK NAGAR, STREET NO. 6, HYD 500 020. BAHEERBAGH, HYDERABAD 2) ITO, WARD 11(3), HYD. 3 CIT(A)-5, HYDERABAD 4) CIT-5, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., H YDERABAD. 5 ITA NO. 1054 /HYD/2015 SUBHASH PAWAR DESCRIPTION DATE INTLS 1. DRAFT DICTATED ON SR.P.S. 2. DRAFT PLACED BEFORE AUTHOR SR.P.S 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER VP 5 APPROVED DRAFT COMES TO THE SR.P.S./PS SR.P.S. 6. KEPT FOR PRONOUNCEMENT ON SR.P S. 7. FILE SENT TO THE BENCH CLERK SR.P.S. 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER