Vijayender Reddy Jakkula, Secunderabad V. Income Tax Officer, Ward-10(1), Hyderabad

ITA 1121/Hyd/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 9467 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-B
• Next Hearing Date: 18-02-2021
• Assessment Year: 2007-2008
• Appeal Filed On: 10-07-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S RAMA RAO
• Keywords: Opportunity of being heard; Cost of acquisition; Non compliance; Assessment record; Set aside; Capital Gains
• Section: 143(1); 250; 147; 131; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER I.T.A. NO. 1121/HYD/2019 ASSESSMENT YEAR: 2007-08 VIJAYENDER REDDY JAKKULA, SECUNDERABAD [PAN: ACZPJ8037H] VS INCOME TAX OFFICER, WARD-10(1), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI S.RAMA RAO, AR FOR REVENUE : SHRI ROHIT MUJUMDAR, DR DATE OF HEARING : 18-02-2021 DATE OF PRONOUNCEMENT : 15-03-2021 O R D E R PER S.S.GODARA, J.M. : THIS ASSESSEES APPEAL FOR AY.2007-08 ARISES FROM TH E CIT(A)-6, HYDERABADS ORDER DATED 01-03-2019 PASSED IN APPEAL NO.10232/2017-18/A3/CIT(A)-6 IN PROCEEDINGS U/S. 144 R.W.S.254 OF THE INCOME TAX ACT, 1961 [IN SHORT, THE ACT]. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEES SOLE SUBSTANTIVE GRIEVANCE CANVASS ED IN THE INSTANT APPEAL CHALLENGES CORRECTNESS OF BOTH THE LOW ER AUTHORITIES ACTION REITERATING LONG TERM CAPITAL GAINS A DDITION OF RS.1,16,19,800/- IN THE COURSE OF ASSESSMENT DT.29- 12- 2017 AS UPHELD IN THE CIT(A)S ORDER. THE CIT(A)S TO THIS EFFECT READS AS UNDER: ITA NO. 1121/HYD/2019 :- 2 -: 5.1 AS SEEN FROM THE FACTS OF THE CASE, THE ASSESS EE IS AN INDIVIDUAL AND ENGAGED IN THE BUSINESS OF REAL ESTATE I.E., PU RCHASE AND THE SALE OF THE PROPERTY. IN THIS CASE, ORIGINALLY THE ASSES SEE FILED THE RETURN OF INCOME FOR THE IMPUGNED AY 2007-08 ON 14.09.2007, A DMITTING A TOTAL INCOME OF RS.1,98,361/-. THE RETURN OF INCOME WAS PROCESSED U/S 143(1) OF THE ACT, ACCEPTING THE RETURNED INCOM E. 5.2 SUBSEQUENTLY, THE ASSESSMENT WAS REOPENED ON TH E BASIS OF INFORMATION FOUND DURING THE COURSE OF SURVEY U/S.1 33A OF THE ACT CONDUCTED IN THE CASE OF M/S.SURAKSHITA HOMES ON 04 .09.2008 WHEREIN CERTAIN DOCUMENTARY EVIDENCE WAS FOUND THAT THE ASSESSEE HAD RECEIVED A SUM OF RS.1,40,00,000/- FROM M/S.SUR AKSHITA HOMES AND M/S.SIDHARTH ESTATES REPRESENTED BY SMT.C.AMARA VATHI THROUGH THE INTERMEDIARY SRI K.KRISHNA REDDY TOWARDS REAL E STATE TRANSACTIONS. ACCORDINGLY, THE ASSESSMENT WAS COMPL ETED U/S.143(3) RWS 147 OF THE ACT, VIDE ORDER DATED 22.12.2011. WH ILE DOING SO, THE AO CONSIDERED THE ABOVE MENTIONED AMOUNT OF RS.1,40 ,00,000/- AS FULL VALUE OF CONSIDERATION, AND AFTER ALLOWING IND EXED COST OF ACQUISITION OF RS.23,80,200/-, A SUM OF RS.1,16,19, 800/- WAS ASSESSED AS LONG TERM CAPITAL GAINS (LTCG). 5.3 AGGRIEVED BY THE ACTION OF THE AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE CIT(A)-6, HYDERABAD, WHICH CAME TO BE DISMISSED, VIDE ORDER IN F.NO. 0327/2011-12/CIT(A)-VI DATED 10.07.2 013. THEREAFTER, THE MATTER WAS CARRIED TO HON'BLE ITAT, HYDERABAD. ACCORDINGLY, THE HON'BLE ITAT HAS DISPOSED OF THE APPEAL, VIDE ORDER IN ITA NO.1379/HYD/2013, DATED 31.01.2017. WHILE DOING SO, THE HON'BLE ITAT HAS SET ASIDE THE ORDERS OF THE AO AND CIT(A), AND RESTORED THE MATTER TO THE ME OF THE AO TO COMPLETE THE ASSESSME NT, AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE RELEVANT PORTION OF THE ORDER THE HON'BLE ITAT IS REPRODUCED BELOW F OR READY REFERENCE: '6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PE RUSED THE ORDERS OF THE AUTHORITIES. EVEN THOUGH THERE IS EVIDENCE T HAT ASSESSEE IS STATED TO HAVE BEEN RECEIVED RS. 1,40,00,000/- BY W AY OF ACCOUNT COPIES MAINTAINED BY THE SAID FIRM AND ALSO BY WAY OF AGREEMENT ENTERED BETWEEN THREE PARTIES, THE STATEMENTS RECOR DED AND THE ACCOUNT COPIES HAVE NOT BEEN CONFRONTED TO ASSESSEE . EVEN THE ORDER OF THE CIT(A) DOES NOT MENTION THAT ASSESSEE HAS BE EN GIVEN AN OPPORTUNITY AFTER THE REMAND REPORT. AS SEEN FROM T HE COPY OF THE ACCOUNT HEADED AUSHAPUR LAND PAYMENT ASSESSEE WAS STATED TO HAVE RECEIVED RS. 90 LAKHS- BY WAY OF DD OF RS.20 L AKHS AND BALANCE BY WAY OF CASH BETWEEN 04-09-2006 TO 04-12- 2006. ONE PAYMENT ON 09-11-2006 WAS THROUGH SHRI KRISHNA REDD Y. BALANCE OF THE AMOUNT OF ABOUT RS. 72,75,000/- WAS ALSO TRANSF ER ENTRIES FROM SHRI KRISHNA REDDY ACCOUNT. THE ROLE OF SHRI KRISHN A REDDY WAS NOT BROUGHT ON RECORD AND WE ARE NOT SURE WHETHER ANY S TATEMENT HAS BEEN RECORDED FROM SHRI KRISHNA REDDY. PRIMA-FACIE THERE SEEMS TO ITA NO. 1121/HYD/2019 :- 3 -: BE EVIDENCE IN SUPPORT OF THE REVENUE CONTENTIONS, BUT SINCE THE ACCOUNT COPIES AND STATEMENTS HAVE NOT BEEN CONFRON TED TO ASSESSEE, CONSIDERING THE REQUEST MADE BY THE LD.COUNSEL IN T HE COURSE OF ARGUMENTS, WE ARE OF THE OPINION THAT THE MATTER IS TO BE SET ASIDE TO THE FILE OF THE AO TO GIVE PROPER OPPORTUNITY TO AS SESSEE TO EXPLAIN HIS STAND AND ALSO TO OFFER CROSS-EXAMINATION OF THE PA RTIES, IF REQUIRED. THE ROLE OF SHRI KRISHNA REDDY ALSO REQUIRES EXAMIN ATION. 6.1. IN VIEW OF THIS, ORDERS OF THE ASSESSING OFFIC ER AND CIT(A) ARE SET ASIDE AND MATTER IS RESTORED TO THE FILE OF THE AO TO COMPLETE ASSESSMENT AFTER GIVING DUE OPPORTUNITY TO ASSESSEE AS STATED ABOVE. SINCE THE ISSUE IS RESTORED TO THE FILE OF AO, THE ALTERNATE CONTENTION IN GROUND NO.3 IS NOT BEING EXAMINED NOW. AO, HOWEVER, IS DIRECTED TO EXAMINE THIS ASPECT ALSO AND COMPLETE THE ASSESSMEN T AS PER THE FACTS AND LAW ON THE SUBJECT. ASSESSEE'S GROUNDS AR E ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (EMPHASIS SUPPLIED) 5.4 AS SEEN FROM THE ORDER OF THE HON'BLE ITAT, THE AO WAS DIRECTED TO GIVE PROPER OPPORTUNITY TO THE ASSESSEE TO EXPLA IN HIS STAND AND ALSO TO OFFER CROSS EXAMINATION OF THE PARTIES, IF REQUIRED. ALSO, IT IS OBSERVED THAT THE ROLE OF SRI. K.KRISHNA REDDY REQU IRES TO BE EXAMINED. ACCORDINGLY, THE AO ISSUED A NOTICE TO TH E ASSESSEE, VIDE LETTER DATED 11.09.2017, PROVIDING AN OPPORTUNITY O F BEING HEARD. HOWEVER, THE SAID LETTER WAS RETURNED UNSERVED BY T HE POSTAL AUTHORITIES STATING THAT ADDRESS IS SHIFTED. IN VIE W OF THIS, THE INSPECTOR OF INCOME TAX HAD CONTACTED THE ASSESSEE OVER PHONE INFORMING HIM ABOUT THE NOTICE ISSUED WHICH HAS BEE N RETURNED UNSERVED. IN RESPONSE THERETO, THE ASSESSEE STATED THAT HE IS NO LONGER RESIDING IN THE SAME ADDRESS, BUT REFUSED TO GIVE THE CURRENT ADDRESS. IN VIEW OF THIS, THE AO ISSUED ONE MORE NO TICE DATED 31.10.2017, WHICH ALSO HAS BEEN RETURNED UNSERVED. 5.5 MEANWHILE, AS DIRECTED BY THE HON'BLE ITAT (SUP RA), THE AO ISSUED SUMMONS U/S.131 OF THE ACT DATED 08.12.2017 TO SRI. K. KRISHNA REDDY, WHO ACTED AS AN INTERMEDIARY IN THE RECEIPT OF THE MONEY BY THE ASSESSEE, TO ATTEND THE HEARING ON 18. 12.2017. HOWEVER, IT IS REPORTED THAT THERE WAS NO RESPONSE TO SAID SUMMONS ISSUED. IN VIEW OF THIS, THE AO INFORMED THE ASSESS EE ABOUT NONCOMPLIANCE OF SRI. K.KRISHNA REDDY, WITH A REQUE ST TO PRODUCE SRI. K.KRISHNA REDDY, FOR VERIFICATION ON OR BEFORE 27.1 2.2017. HOWEVER, THE ASSESSEE HAS NOT RESPONDED TO THE SAME. IN VIEW OF THIS, THE AO PROCEEDED TO COMPLETE THE ASSESSMENT WHEREIN THE EA RLIER ADDITION MADE OF RS.1,16,19,800/- UNDER THE HEAD LTCG WAS RE TAINED. THE RELEVANT PORTION OF THE ASSESSMENT ORDER IS REPRODU CED BELOW FOR READY REFERENCE: ITA NO. 1121/HYD/2019 :- 4 -: '2. DURING THE COURSE OF SURVEY PROCEEDINGS IN THE CASE OF M/S SURAKSHITA HOMES ON 04-09-2008, CERTAIN DOCUMENTS W ERE FOUND AND IMPOUNDED, RELATING TO THE TRANSACTION OF PURCHASES OF LANDS BY THE SAID FIRM. ONE OF THE TRANSACTIONS INVOLVED THE NAM E OF THE ASSESSEE, WHICH WAS RECOVERED IN THE FORM OF MEMORANDUM OF UN DERSTANDING DATED 18-09-2006 BETWEEN THE LAND OWNERS M/S.SIDHAR TH ESTATES REPRESENTED BY SMT.C.AMARAVATHI AND MR J VIJENDER R EDDY, I.E THE ASSESSEE, THE AGREEMENT HOLDER FOR PURCHASE OF THE LANDS AT AUSHAPUR FROM THE LAND OWNERS AND M/S SURASHITA HOM ES, REPRESENTED BY MR. RAMANJANEYULU GOUD. AS PER THE S AID MOU THE ASSESSEE HAD RECEIVED AN AMOUNT OF RS.40, 00, 000/- FROM THE LAND OWNERS TOWARDS THE REPAYMENT OF CONSIDERATION RECEI VED BY LAND OWNERS TO THE EXTENT OF RS.20,00,000/- FROM MR.VIIE NDER REDDY, VIDE THE AGREEMENT FOR SALE DATED 13-12-2002, IN ADDITIO N TO RS.1,00,000/- RECEIVED FROM THE THIRD PARTY MIS SRI SURAKSHITA HOMES, FOR CONSENTING TO NOT TO LITIGATE FURTHER, F OR HAVING FILED A CIVIL SUIT AGAINST THE LAND OWNERS, FOR THE NON-PERFORMAN CE OF AGREEMENT DATED 13-12-2002. 3. THE ASSESSMENT WAS COMPLETED BY BRINGING THE ENT IRE CONSIDERATION OF RS.1,40,00,000/- TO TAX, AFTER ALL OWING THE COST OF ACQUISITION AND MADE A NET ADDITION OF RS.1,16,19,8 00/- TO ASSESS THE TOTAL INCOME AT RS.1,18,18,430/-. 3.1 ON APPEAL, THE LD.CIT(A) UPHELD THE ACTION OF T HE ASSESSING OFFICER IN ADOPTING THE AMOUNTS RECEIVED BY THE ASS ESSEE AT RS.1,40,00,000/- AND COMPUTING THE LONG TERM CAPITA L GAINS AT RS.1,16,19,800/- AND DISMISSED THE APPEAL OF THE AS SESSEE. ON FURTHER APPEAL FILED BY THE ASSESSEE BEFORE THE HON 'BLE ITAT, THE HON'BLE ITAT VIDE ORDER IN ITAT NO: 1379/HYD/2013, DT.31-01-2017 HAS SET ASIDE THE ISSUE TO THE FILE OF THE AO TO GI VE PROPER OPPORTUNITY TO THE ASSESSEE TO EXPLAIN ASSESSEE'S STAND AND ALS O TO OFFER CROSS- EXAMINATION OF THE PARTIES, ESPECIALLY ONE, SRI K K RISHNA REDDY, IF REQUIRED 3.2 ACCORDINGLY, THE CASE WAS POSTED FOR HEARING VI DE THIS OFFICE LETTER DT 11-09-2017 REQUESTING THE ASSESSEE TO APPEAL ON 22-09-2017 ALONG WITH SUPPORTING DOCUMENTS. HOWEVER, THERE WAS NO COMPLIANCE FROM THE ASSESSEE ON THE SAID DATE. AGAIN, AN OPPOR TUNITY LETTER DT 31-10-2017 WAS ISSUED TO THE ASSESSEE AND THE CASE WAS POSTED FOR HEARING ON 10-11-2017. IN RESPONSE TO THE SAME, ASS ESSEE APPEARED AND SOUGHT ADJOURNMENT. AT THE REQUEST OF ASSESSEE, THE CASE WAS REPOSTED FOR HEARING ON 27-11-2017. ON THE SAID DAT E, HE ASSESSEE ALONG WITH SRI P.R.SARVAN KUMAR, TAX ADVOCATE & A.R OF THE ASSESSEE APPEARED AND REQUESTED FOR COPIES OF LEDGER ALE AND STATEMENT OF SRI C.R.JAGDISH, SMT.C.AMARAVATHI, SRI B.BALARAJ GOUD & SRI P.RAMANJANEYULU. COPIES OF THE SAME WERE PROVIDED I MMEDIATELY. THEY WERE REQUESTED TO SUBMIT A NOTE REGARDING THEI R SUBMISSIONS ITA NO. 1121/HYD/2019 :- 5 -: AND THE CASE WAS ADJOURNED TO 08-12-2017. ON THE SA ID DATE, BOTH ASSESSEE AND THEIR AR APPEARED AND AGAIN SOUGHT TIM E TO FURNISH THEIR SUBMISSIONS. THE AR INTIMATED THE ADDRESS OF SRI K KRISHNA REDDY, WHO ACTED AS AN INTERMEDIARY IN THE RECEIPT OF THE MONEY BY THE ASSESSEE. ON THE REQUEST OF THE ASSESSEE, SUMMO NS WERE ISSUED TO SRI K.KRISHNA REDDY, WHO ACTED AS AN INTERMEDIAR Y IN THE RECEIPT OF THE MONEY BY THE ASSESSEE. ON THE REQUEST OF THE ASSESSEE, SUMMONS WERE ISSUED TO SRI K KRISHNA REDDY, WHO ACT ED AS AN INTERMEDIARY IN THE RECEIPT OF MONEY BY THE. ASSESS EE. ON THE REQUEST OF THE ASSESSEE, SUMMONS WERE ISSUED TO SRI K KRISH NA REDDY BUT HE DID NOT RESPOND TO THE SAME TILL DATE. THE AR WAS T WICE INFORMED OF THE NON COMPLIANCE OF SRI K KRISHNA REDDY AND WAS I NFORMED THAT THE ONUS TO PRODUCE SRI K KRISHNA REDDY LIES ON THE ASSESSEE AS THE DOCUMENTARY EVIDENCE IS AGAINST THE ASSESSEE. A LET TER DATED 21-12- 2017 WAS ALSO ADDRESSED TO THE ASSESSEE. THE CONTEN TS OF THE LETTER ARE REPRODUCED AS UNDER: 'IN CONNECTION WITH PENDING PROCEEDINGS, SUMMONS WE RE ISSUED TO SRI K KRISHNA REDDY, GHATKESAR MANDAL DISTRICT. HOWEVER , HE HAS NOT COMPLIED TO THE SUMMONS. AS PER INFORMATION AVAILAB LE ON RECORD, PAYMENTS WERE MADE TO YOU THROUGH SRI K KRISHNA RED DY. HENCE, IT SHALL BE TREATED THAT THE PAYMENTS WERE RECEIVED BY YOU. IN CASE, YOU WISH TO CONTRADICT THE SAME, YOU ARE H EREBY REQUIRED TO PRODUCE SRI K KRISHAN REDDY FOR VERIFICATION OF YOU R STAND THAT YOU HAVE NOT RECEIVED THE PAYMENTS. YOU ARE HEREBY REQU IRED TO PRODUCE SRI K KRISHNA REDDY ON OR BEFORE 27-12-2017, FALLIN G WHICH IT SHALL BE PRESUMED THAT YOU HAVE NOTHING TO CONTRADICT THE FA CT OF PAYMENTS TO YOU. ' 3.3 HOWEVER, THERE WAS NO COMPLIANCE EITHER FROM TH E ASSESSEE OR SRI KRISHNA REDDY, TILL DATE. AS DIRECTED BY THE HANBL E ITAT, THE COPIES OF THE DOCUMENTS REQUESTED BY THE ASSESSEE WERE PRO VIDED AND HE WAS ASKED TO FURNISH HIS SUBMISSIONS. 3.4 THE HON'BLE ITAT IN ITS ORDER HAS STATED THAT ' EVEN THOUGH THERE IS EVIDENCE THAT ASSESSEE IS STATED TO HAVE BEEN RE CEIVED RS.1,40,00,000/- BY WAY OF ACCOUNT COPIES MAINTAINE D BY THE SAID FIRM AND ALSO BY WAY OF AGREEMENT ENTERED BETWEEN T HREE PARTIES, THE STATEMENTS HAVE NOT BEEN CONFRONTED TO ASSESSEE '. FURTHER, THE HON'BLE ITAT HAS STATED THAT 'PRIMA-FACIE THERE SEE MS TO BE EVIDENCE IN SUPPORT OF THE REVENUE CONTENTIONS, BUT SINCE TH E ACCOUNT COPIES AND STATEMENTS HAVE NOT BEEN CONFRONTED TO ASSESSEE '. IT IS SEEN FROM THE SAME, THAT THE ITAT HAS APPRECIATED THE EVIDENC E AVAILABLE ON RECORD WHICH IS AGAINST THE ASSESSEE AND ONLY ON TE CHNICAL GROUNDS. I.E GIVING OF OPPORTUNITY TO THE ASSESSEE, THE ASSE SSMENT WAS SET ASIDE. ITA NO. 1121/HYD/2019 :- 6 -: 3.5 AS DIRECTED BY THE HON'BLE ITAT, SUFFICIENT OPP ORTUNITY WAS PROVIDE TO THE ASSESSEE TO CONTRADICT THE EVIDENCE AVAILABLE ON RECORD AGAINST THE ASSESSEE AND COPIES OF THE SAME WERE AL SO PROVIDED TO THE ASSESSEE. BUT, IN SPITE OF THE SAME, THE ASSESS EE FAILED TO FURNISH ANY SUBMISSIONS. HENCE, IN THE ABSENCE OF THE SAME, IT IS PRESUMED THAT THE ASSESSEE HAS NO SUBMISSIONS TO MAKE AND TH E ASSESSMENT IS COMPLETED ACCORDINGLY.' 6.0 ANALYSIS OF THE FACTS AND ADJUDICATION OF THE GROUND: 6.1 THE ASSESSEE HAS RAISED SOLITARY GROUND OF APPE AL CONTENDING THAT THE AO HAS FAILED TO AFFORD AN OPPORTUNITY TO THE ASSESSEE TO CROSS EXAMINE THE WITNESS AS DIRECTED BY THE HON'BL E ITAT. ACCORDINGLY, THE ASSESSEE HAS REQUESTED THE APPELLA TE AUTHORITY TO SET-ASIDE THE ORDER OF THE AO WITH A DIRECTION TO A FFORD AN OPPORTUNITY TO CROSS EXAMINE THE WITNESS BY THE ASSESSEE. THE S AID GROUND OF APPEAL IS TAKEN UP FOR DISCUSSION AND ADJUDICATION AS UNDER: 6.2.0 GROUND NO.1: 1. THE APPELLANT HAS APPEALED AGAINST THE EARLIER O RDER OF CIT(A) TO ITAT HAVING AGGRIEVED OF THE ORDER CONFIRMING THE A SSESSMENT OF AO IN RELIEF THE HON'BLE ITAT HAS REMANDED THE CASE HA VING SET ASIDE THE ORDER PASSED BY CIT(A) FOR AFFORDING OPPORTUNITY TO EXAMINE AND CROSS EXAMINE THE WITNESS CONFRONTING THE APPELLANT BUT T HE AO NOT AFFORDED THE OPPORTUNITY TO APPELLANT TO CROSS EXAM INE THE WITNESS ON WHOM THE ENTIRE IS BASED UPON. THEREFORE IT IS PRAY ED TO SET ASIDE THE ORDER OF AO AND AFFORD THE OPPORTUNITY TO THE APPEL LANT TO CROSS EXAMINE THE WITNESS TO ENABLE THE APPELLANT TO PROV E HIS STAND IN THE CASE. ANY OTHER GROUNDS THAT MAY BE URGED AT THE TI ME OF HEARING. 6.2.1 I HAVE CAREFULLY CONSIDERED THE GROUND OF APP EAL AND CONTENTIONS RAISED BY THE ASSESSEE, AND EXAMINED TH E SAME IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE AN D DOCUMENTARY EVIDENCE PLACED ON RECORD, INCLUDING THE ORDER OF H ON'BLE ITAT DATED 31.01.2017 (SUPRA). 6.2.2 AT THE OUTSET, IT IS IMPORTANT TO NOTE THAT T HE ASSESSEE HAS NOT RAISED ANY GROUNDS AGAINST THE MERITS OF THE CASE W ITH REGARD TO ASSESSMENT OF A SUM OF RS.1,16,19,800/- AS LTCG. ON THE OTHER HAND, THE ASSESSEE HAS RAISED A TECHNICAL ISSUE THA T THE AO HAS FAILED TO ALLOW AN OPPORTUNITY TO CROSS-EXAMINE THE WITNESS AND, THEREFORE, REQUESTED TO SET-ASIDE THE IMPUGNED ORDE R. IN THIS REGARD, IT MAY BE NOTED THAT THE FIRST APPELLATE AUTHORITY I.E . CIT(APPEALS) HAS NO POWER TO SET-ASIDE THE ASSESSMENT ORDER. 6.2.3 BE THAT AS IT MAY, AS EXPLAINED IN THE FACTS OF THE CASE, IN THE INSTANT CASE, THE HON'BLE ITAT HAS SET-ASIDE THE AS SESSMENT ORDER ITA NO. 1121/HYD/2019 :- 7 -: AND APPELLATE ORDER AND DIRECTED THE AO TO COMPLETE THE ASSESSMENT AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. WHILE DOING SO, THE HON'BLE ITAT HAS INDICATED THAT, IF REQUIRED, THE A SSESSEE MAY BE ALLOWED AN OPPORTUNITY TO CROSS EXAMINE THE PARTIES . ALSO, THE HON'BLE ITAT FELT THAT THE ROLE OF SRI K.KRISHNA REDDY REQU IRES EXAMINATION. 6.2.4 I HAVE EXAMINED THE ASSESSMENT RECORD AND FOU ND THAT THE AO HAD OFFERED ADEQUATE NUMBER OF OPPORTUNITIES OF BEI NG HEARD TO THE ASSESSEE BEFORE FINALISING THE ASSESSMENT ORDER. TO BE PRECISE, AS HIGHLIGHTED IN THE FIRST PAGE OF THE ASSESSMENT ORD ER, THE CASE WAS HEARD ON THREE OCCASIONS I.E., ON 10.11.2017, 27.11 .2017 & 08.12.2017. FURTHER, AS NARRATED IN THE PARA NO.3.2 OF THE IMPUGNED ORDER, THE CASE WAS POSTED FOR HEARING ON VARIOUS D ATES, BUT NEITHER THE ASSESSEE NOR THE AR OF THE ASSESSEE HAD APPEARE D AND REPRESENTED THE CASE. 6.2.5 TO BE PRECISE, INITIALLY THE CASE WAS POSTED FOR HEARING ON 22.09.2017 REQUESTING THE ASSESSEE TO APPEAR ALONG WITH SUPPORTING DOCUMENTARY EVIDENCES AS DIRECTED BY THE HON'BLE IT AT. HOWEVER, AS REPORTED IN THE ASSESSMENT ORDER, THERE WAS NO COMP LIANCE BY THE ASSESSEE ON THE SCHEDULED DATE. THEREAFTER, FINALLY , THE AO ISSUED A LETTER DATED 21.12.2017 REQUESTING THE ASSESSEE TO PRODUCE SRI K.KRISHNA REDDY ON OR BEFORE 27.12.2017 ON THE GROU ND THAT THE EFFORTS MADE BY HIM BY WAY OF ISSUING SUMMONS U/S 1 31 OF THE ACT COULD NOT FRUCTIFY. HOWEVER, THE ASSESSEE DID NOT R ESPOND TO THE SAID LETTER, AND, THEREFORE, FAILED TO APPEAR BEFORE THE AO. ALSO, AS DIRECTED BY THE HON'BLE ITAT, THE AO PROVIDED COPIES OF ALL THE DOCUMENTS TO THE ASSESSEE TO FILE HIS OBJECTIONS AND SUBMISSIONS , IF ANY. THE RELEVANT PORTION OF THE ASSESSMENT ORDER IN THIS RE GARD IS REPRODUCED BELOW FOR READY REFERENCE: '3.2 ACCORDINGLY, THE CASE WAS POSTED FOR HEARING V IDE THIS OFFICE LETTER DT 11-09-2017 REQUESTING THE ASSESSEE TO APP EAL ON 22-09-2017 ALONG WITH SUPPORTING DOCUMENTS. HOWEVER, THERE WAS NO COMPLIANCE FROM THE ASSESSEE ON THE SAID DATE. AGAIN, AN OPPOR TUNITY LETTER DT 31-10-2017 WAS ISSUED TO THE ASSESSEE AND THE CASE WAS POSTED FOR HEARING ON 10-11-2017. IN RESPONSE TO THE SAME, ASS ESSEE APPEARED AND SOUGHT ADJOURNMENT. AT THE REQUEST OF ASSESSEE, THE CASE WAS REPOSTED FOR HEARING ON 27-11-2017. ON THE SAID DAT E, HE ASSESSEE ALONG WITH SRI P.R.SARVAN KUMAR, TAX ADVOCATE & A.R OF THE ASSESSEE APPEARED AND REQUESTED FOR COPIES OF LEDGER A/C AND STATEMENT OF SRI C.R.JAGDISH, SMT.C.AMARAVATHI, SRI B.BALARAJ GAUD & SRI P.RAMANJANEYULU. COPIES OF THE SAME WERE PROVIDED I MMEDIATELY. THEY WERE REQUESTED TO SUBMIT A NOTE REGARDING THEI R SUBMISSIONS AND THE CASE WAS ADJOURNED TO 08-12-2017. ON THE SA ID DATE, BOTH ASSESSEE AND THEIR AR APPEARED AND AGAIN SOUGHT TIM E TO FURNISH THEIR SUBMISSIONS. THE AR INTIMATED THE ADDRESS OF SRI K KRISHNA REDDY. WHO ACTED AS AN INTERMEDIARY IN THE RECEIPT OF THE MONEY BY ITA NO. 1121/HYD/2019 :- 8 -: THE ASSESSEE. ON THE REQUEST OF THE ASSESSEE. SUMMO NS WERE ISSUED TO SRI K.KRISHNA REDDY, WHO ACTED AS AN INTERMEDIAR Y IN THE RECEIPT OF THE MONEY BY THE ASSESSEE. ON THE REQUEST OF THE ASSESSEE, SUMMONS WERE ISSUED TO SRI K KRISHNA REDDY, WHO ACT ED AS AN INTERMEDIARY IN THE RECEIPT OF MONEY BY THE ASSESSE E. ON THE REQUEST OF THE ASSESSEE, SUMMONS WERE ISSUED TO SRI K KRISH NA REDDY BUT HE DID NOT RESPOND TO THE SAME TILL DATE. THE AR WAS T WICE INFORMED OF THE NON COMPLIANCE OF SRI K KRISHNA REDDY AND WAS I NFORMED THAT THE ONUS TO PRODUCE SRI K KRISHNA REDDY LIES ON THE ASSESSEE AS THE DOCUMENTARY EVIDENCE IS AGAINST THE ASSESSEE. A LET TER DATED 21-12- 2017 WAS ALSO ADDRESSED TO THE ASSESSEE. THE CONTEN TS OF THE LETTER ARE REPRODUCED AS UNDER: 'IN CONNECTION WITH PENDING PROCEEDINGS, SUMMONS WE RE ISSUED TO SRI K KRISHNA REDDY, GHATKESAR MANDAL DISTRICT. HOWEVER , HE HAS NOT COMPLIED TO THE SUMMONS. AS PER INFORMATION AVAILAB LE ON RECORD, PAYMENTS WERE MADE TO YOU THROUGH SRI K KRISHNA RED DY. HENCE, IT SHALL BE TREATED THAT THE PAYMENTS WERE RECEIVED BY YOU. IN CASE, YOU WISH TO CONTRADICT THE SAME, YOU ARE H EREBY REQUIRED TO PRODUCE SRI K KRISHAN REDDY FOR VERIFICATION OF YOU R STAND THAT YOU HAVE NOT RECEIVED THE PAYMENTS. YOU ARE HEREBY REQU IRED TO PRODUCE SRI K KRISHNA REDDY ON OR BEFORE 27-12-2017, FALLIN G WHICH IT SHALL BE PRESUMED THAT YOU HAVE NOTHING TO CONTRADICT THE FA CT OF PAYMENTS TO YOU. ' 3.3 HOWEVER, THERE WAS NO COMPLIANCE EITHER FROM TH E ASSESSEE OR SRI KRISHNA REDDY, TILL DATE. AS DIRECTED BY THE HON'BL E ITAT THE COPIES OF THE DOCUMENTS REQUESTED BY THE ASSESSEE WERE PROVID ED AND HE WAS ASKED TO FURNISH HIS SUBMISSIONS. ' 6.2.6 IN VIEW OF THE ABOVE, I AM OF THE CONSIDERED OPINION THAT THE AO HAS ADHERED TO THE DIRECTIONS ISSUED BY THE HON'BLE ITAT, INCLUDING MAKING EFFORTS TO PROVIDE AN OPPORTUNITY OF CROSS E XAMINATION OF THE PARTY SRI KKRISHNA REDDY BY THE ASSESSEE. AT THIS J UNCTURE, IT MAY BE NOTED THAT AS CLEARLY OBSERVED BY THE HON'BLE ITAT, A MAJOR PART OF THE CONSIDERATION OF RS.1,40,00,000/- WAS ROUTED TH ROUGH SRI KKRISHNA REDDY'S ACCOUNT. 6.2.7 DURING THE COURSE OF APPELLATE PROCEEDINGS, T HE ASSESSEE WAS AFFORDED THREE OPPORTUNITIES OF BEING HEARD, VIDE T HIS OFFICE LETTER/ORDER SHEET NOTING/NOTICE OF HEARING U/S 250 OF THE ACT DATED 22.10.2018,18.10.2018 AND 30.10.2018, POSTING THE C ASE FOR HEARING ON 22.10.2018, 30.10.2018 AND 06.11.2018, RESPECTIV ELY. THOUGH THE AR OF THE ASSESSEE APPEARED ON 30.10.2018 AND REPRE SENTED THE CASE, BUT HE FAILED TO FURNISH THE REQUISITE DETAIL S AND DOCUMENTARY EVIDENCES ON MERITS OF THE CASE ON THE NEXT DATE OF HEARING I.E. 06.11.2018. FURTHER, THE ASSESSEE HAS NOT SOUGHT AN Y ADJOURNMENT OF HEARING SO FAR. ITA NO. 1121/HYD/2019 :- 9 -: 6.2.8 IN VIEW OF THE ABOVE, I AM OF THE CONSIDERED OPINION THAT THE ASSESSEE HAS FAILED TO AVAIL OF THE OPPORTUNITIES P ROVIDED BY THE AO AND ALSO BY THE APPELLATE AUTHORITY. FURTHER, IN RE GARD TO MERITS OF THE CASE, THE ASSESSEE HAS NOT FILED ANY SPECIFIC GROUN DS OF APPEAL AND WRITTEN SUBMISSIONS, AND, THEREFORE, THE QUESTION O F ADJUDICATING THE SAME DOESN'T ARISE. ALSO, AS MENTIONED ELSEWHERE IN THIS ORDER, THE ASSESSEE'S GROUND OF APPEAL TO SET-ASIDE THE ORDER OF THE AO WITH A DIRECTION TO ALLOW AN OPPORTUNITY OF CROSS-EXAMINAT ION OF THE WITNESS DOESN'T COME UNDER THE PURVIEW OF THE POWERS OF THE FIRST APPELLATE AUTHORITY I.E. CIT(APPEALS) U/S 251(1)(A) OF THE AC T W.E.F. 01.06.2001 ONWARDS. THUS, THE GROUND OF APPEAL FILED BY THE AS SESSEE IS TREATED AS DISMISSED. 3. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE ASSESSEES SOLE SUBSTANTIVE GRIEVANCE AND REVENUES ARGUMENTS, QUA THE IMPUGNED LONG TERM CAPITAL GAINS ADDITION. MR.RAMA RAOS ONLY ARGUMENT DURING THE COURSE OF HEAR ING IS THAT NEITHER THE ASSESSING OFFICER NOR THE CIT(A) HAVE PROVIDED THE ASSESSEE AN OPPORTUNITY TO CROSS-EXAMINE SHRI KRIS HNA REDDY (SUPRA) BEFORE REITERATING THE IMPUGNED ADDITIO N. HE THEREAFTER MADE A VERY STRONG ENDEAVOUR TO RELY ON THE TRIBUNALS EARLIER REMAND DIRECTIONS DT.31-01-2017 RE STORING THIS SOLE ISSUE BACK TO THE ASSESSING OFFICER. WE FIN D NO MERIT IN EITHER OF THE FOREGOING ARGUMENTS. WE MAKE IT CLEA R THAT THIS TRIBUNALS FIRST ROUND REMAND DIRECTIONS HAD DIRECTED THE ASSESSING OFFICER TO OFFER CROSS-EXAMINATION OF THE S AID THIRD PARTY ONLY IF REQUIRED AND NOT OTHERWISE AS A RUL E. CASE RECORDS AND MORE PARTICULARLY, THE ASSESSING OFFICER S SECOND ROUND ASSESSMENT ORDER DT.29-12-2017 SUFFICIENTLY IND ICATES THAT HE HAD AFFORDED A NUMBER OF OPPORTUNITIES TO THE ASSESSEE; AS ELUCIDATED IN PARA 3.2, BUT THIS TAXPAYER NEVER EVER TURNED UP ALONG WITH THE CORRESPONDING EXPLANATIO N. WE WISH TO REITERATE HERE THAT THE TRIBUNALS EARLIER CO-ORD INATE BENCH (SUPRA) HAD ALREADY EXPRESSED ITS AGREEMENT WITH THE ITA NO. 1121/HYD/2019 :- 10 -: DEPARTMENT QUA THE IMPUGNED ADDITION IN PRINCIPLE. THE ASSESSEES STAND BEFORE US SEEKS TO SHIFT HIS ONUS O N THE DEPARTMENT SIDE DOES NOT DESERVE TO BE CONCURRED WITH THEREFORE. WE THUS HOLD IN THESE PECULIAR FACTS AND CIRCUMSTANCES THAT BOTH THE LOWER AUTHORITIES HAVE RIGHT LY REITERATED THE IMPUGNED LONG TERM CAPITAL GAINS ADDITION IN ASSESSEES HANDS ON ACCOUNT OF HIS FAILURE TO COMPLY WITH THE TRIBUNALS EARLIER DIRECTIONS AND ON THE BASIS OF THE OVERWHELMING SUPPORTIVE EVIDENCE. THE ASSESSEE FAILS IN HIS SOLE SUBSTANTIVE GRIEVANCE THEREFORE. 4. THIS ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH MARCH, 2021 SD/- SD/- (LAXMI PRASAD SAHU) (S.S.G ODARA) ACCOUNTANT MEMBER JUDICIAL MEM BER HYDERABAD, DATED: 15-03-2021 TNMM ITA NO. 1121/HYD/2019 :- 11 -: COPY TO : 1.SRI VIJAYENDER REDDY JAKKULA, 301, JSR RESIDENCY, JAYA ENCLAVE, NEW BOWENPALLY, SECUNDERABAD. 2.THE INCOME TAX OFFICER, WARD-10(1), HYDERABAD. 3.CIT(APPEALS)-6, HYDERABAD. 4.PR.CIT-6, HYDERABAD. 5.D.R. ITAT, HYDERABAD. 6.GUARD FILE.