Sai Krishna Moturi, Hyd, Hyderabad V. ITO, Ward-12(2), Hyd, Hyderabad

ITA 1079/HYD/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5977 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 11-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: U MINICHANDRAN
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SMT P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER ITA NOS. 1079/HYD/2016 ASSESSMENT YEAR: 2011-12 SAI KRISHNA MOTURI, HYDERABAD HYDERABAD. PAN AUIPM 0221F VS. INCOME TAX OFFICER, WARD 12(2), HYDERABAD (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AMRIT KUMAR KOTA REVENUE BY : SMT. U. MINICHANDRAN DATE OF HEARING : 22-11-2016 DATE OF PRONOUNCEMENT : 09-12-2016 O R D E R PER S. RIFAUR RAHMAN, A.M.: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF CIT(A)-1, HYDERABAD, DATED 28/04/2016 FOR AY 201 1-12. 2. ON PERUSAL OF RECORD, WE FIND THAT THE ASSESSEE FILED THIS APPEAL BEFORE US WITH A DELAY OF 95 DAYS. IN THIS CONNECTI ON, THE ASSESSEE FILED A PETITION MENTIONING THE REASONS FOR THE SAI D DELAY THAT HIS MOTHER WAS EXPIRED AT THE RELEVANT POINT OF TIME, W HICH PREVENTED HIM TO FILE THE APPEAL WITHIN THE STIPULATED TIME. AS T HE ASSESSEE WAS PREVENTED BY THE REASONABLE AND SUFFICIENT CAUSE IN NOT FILING THE APPEAL BEFORE US, WE CONDONE THE DELAY AND ADMIT TH E APPEAL FOR HEARING AND ADJUDICATION. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE A SALARIED EMPLOYEE FILED HIS RETURN OF INCOME FOR THE AY 2011 -12 ON 03/02/2012 ADMITTING AN INCOME OF RS. 80,510/-, WHICH WAS SELE CTED FOR SCRUTINY UNDER CASS. DUE TO NON-COMPLIANCE TO THE NOTICES IS SUED TO THE 2 ITA NOS. 1079/H/16 SAI KRISHNA MOTURI ASSESSEE U/S 143(2) AND 142(1), THE AO PASSED AN EX -PARTE ORDER U/S 144 OF THE ACT MAKING AN ADDITION OF RS. 28,10,900/ - ON ACCOUNT OF CASH DEPOSITS. 4. ON AN APPEAL BEFORE THE CIT(A), THE ASSESSEE MAD E SUBMISSIONS, WHICH WERE REMANDED TO AO BY THE CIT(A ) ON THE GROUND THAT SINCE THE ASSESSMENT WAS COMPLETED U/S 144, THE SUBMISSIONS MADE BEFORE HIM WERE NEW EVIDENCE/ MATE RIAL. IN THE REMAND REPORT, THE AO SUBMITTED THAT EXCEPT IN THE CASE OF SRI RAM KUMAR, WHO HAS GIVEN HAND LOAN OF RS. 20,000/-, THE OTHERS HAVE GIVEN CONFIRMATION. THE CIT(A) AFTER CONSIDERING TH E REMAND REPORT SUBMITTED BY THE AO, SUSTAINED THE DISALLOWANCE TO THE EXTENT OF RS. 20,000/- TOWARDS UNEXPLAINED CASH DEPOSIT IN THE BA NK. 5. IN THE MEANWHILE, THE AO INITIATED PROCEEDINGS U /S 271(1)(C) FOR FURNISHING INACCURATE PARTICULARS OF THE INCOME AND ISSUED PENALTY NOTICE ON 31/03/2014. SINCE THERE WAS NO COMPLIANCE FROM THE ASSESSEE TO THE SAID NOTICE, THE AO DEEMED THAT THE ASSESSEE HAS NO EXPLANATION TO OFFER FOR THE CASH DEPOSITS IN HIS B ANK ACCOUNTS AND ACCORDINGLY, HE LEVIED A MINIMUM PENALTY OF RS. 10, 62,599/- U/S 271(1)(C) OF THE ACT. ON APPEAL, THE CIT(A) CONFIRM ED THE PENALTY LEVIED BY THE AO. 6. AGGRIEVED BY THE ORDER OF THE CIT(A), THE ASSESS EE IS IN APPEAL BEFORE US CHALLENGING THE ACTION OF THE CIT(A) IN U PHOLDING THE PENALTY LEVIED BY THE AO U/S 271(1)(C) OF THE ACT. 7. BEFORE US, THE LD. AR OF THE ASSESSEE FILED A C OPY OF THE CONSEQUENTIAL ORDER DATED 09/11/2016 PASSED BY THE AO AGAINST THE ORDER OF CIT(A) WHEREIN THE INCOME REVISED BY THE A O AS UNDER: 1) TOTAL INCOME AS PER INCOME RETURNED RS. 80, 510 2) TOTAL INCOME AS PER ORDER U/S 144 RS.28,10,900 RS. 28,91,410 3 ITA NOS. 1079/H/16 SAI KRISHNA MOTURI LESS: RELIEF ALLOWED BY THE CIT(A) VIDE RS. 27,90, 900 ORDER DT. 28/04/2016. REVISED TOTAL INCOME RS. 1,00,510 =========== TAX THEREON RS. NILL NET TAX PAYABLE NILL 7.1 LD. AR, THEREFORE, SUBMITTED THAT PENALTY LEVIE D ON THE ADDITION, WHICH WAS NON-EXISTENT AS PER THE CONSEQUENTIAL ORD ER, CANNOT WITH STAND. ACCORDINGLY, HE SUBMITTED THAT THE PENALTY L EVIED MAY BE CANCELLED. 8. ON THE OTHER HAND, THE LD. DR HAS NOT CONTROVERT ED THE SUBMISSIONS OF THE LD. AR. 9. CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL FACTS ON RECORD. AS SUBMITTED BY THE LD. AR OF THE ASSESS EE, THE AO HAS PASSED CONSEQUENTIAL ORDER FOR THE QUANTUM APPEAL A FTER FIRST APPELLATE PROCEEDINGS, AS PER WHICH THE ADDITIONS W ERE DELETED BY THE LD. CIT(A). THE PROCEEDINGS U/S 271(1)(C) WERE INIT IATED BEFORE THE ORDER OF FIRST APPELLATE AUTHORITY AND THERE IS NO LIABILITY IN EXISTENCE. HENCE, THE PENALTY PROCEEDINGS ON NON-EXISTENT LIAB ILITY CANNOT WITH STAND. THEREFORE, THE PENALTY LEVIED BY THE AO U/S 271(1)(C) OF THE ACT IS DELETED. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . PRONOUNCED IN THE OPEN COURT ON 9 TH DECEMBER, 2016 SD/- SD/- (P. MADHAVI DEVI) (S. RIFAUR RAHM AN) JUDICIAL MEMBER A CCOUNTANT MEMBER HYDERABAD, DATED: 9 TH DECEMBER, 2016 KV 4 ITA NOS. 1079/H/16 SAI KRISHNA MOTURI COPY TO:- 1) SHRI SAI KRISHNA MOTURI, 19-3-294/2, VATTEPALLY , FALAKNUMA, HYDERABAD 500 053 2) ITO, WARD 12(2), HYDERABAD. 3) CIT(A) - 1, HYDERABAD 4 PR. CIT 1, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDE RABAD. 6) GUARD FILE .