P.Madhusudhan, Hyderabad V. Asst.CIT, Central Circle-5, Hyderabad

ITA 1126/HYD/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 6407 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 20-06-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 04-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K J RAO
• Assessee Lawyers: P MURALI MOHAN RAO
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B (SMC) : HYDERABAD BEFORE SHRI D. MANMOHAN, VICE PRESIDENT ITA.NO. A.Y. APPELLANT RESPONDENT 1126/H/2014 2005 - 06 MR. P. MADHUSUDHAN, HYDERABAD. PAN AFTPP2200D ACIT, CENTRAL CIRCLE-5, HYDERABAD. 1128/H/2014 2007 - 08 1129/H/2014 2008 - 09 1164/H/2014 2008 - 09 M/S. SRI SAI PRASANTHI REALTORS, HYDERABAD. PAN ABIFS8348G ACIT, CENTRAL CIRCLE-5, HYDERABAD. 1165/H/2014 2009 - 10 FOR ASSESSEE : MR. P. MURALIMOHAN RAO FOR REVENUE : MR. K.J. RAO DATE OF HEARING : 2 1 .06.2016 DATE OF PRONOUNCEMENT : 21 .06.2016 ORDER THESE APPEALS, FILED BY THE ASSESSEES HEREIN, ARE DIRECTED AGAINST THE ORDERS PASSED BY THE CIT(A )-I, HYDERABAD WHEREIN THE APPEALS WERE DISMISSED IN LIMINE ON THE LIMITED GROUND THAT THE ADMITTED TAX WAS NOT PAID BY THE ASSESSEES. 2. ACCORDING TO THE LD. CIT(A), THE PROVISIONS CONTAINED IN SECTION 249(4)(A) OF THE I.T. ACT ARE MANDATORY IN NATURE AND IN THE EVENT OF NON-PAYMENT OF TAX ON ADMITTED INCOME ASSESSEE HAS NO RIGHT TO PROSECUTE THE APPEALS. ACCORDINGLY, THE APPEALS WER E NOT ADMITTED FOR ADJUDICATION. AGGRIEVED BY THE ORDERS PASSED 2 ITA.NOS.1126, 1128 & 1129/H/2014 & 1164 & 1165/H/20 15 MR. P. MADHUSUDHAN & M/S. SRI SAI PRASANTHI REALTOR S, HYD. BY THE LD. CIT(A), ASSESSEES HEREIN PREFERRED APPEA LS CONTENDING INTER ALIA, THAT THE ADMITTED TAX SHOULD HAVE BEEN ADJUSTED AGAINST THE CASH SEIZED FROM THE ASSE SSEES/ RECOVERS THEREAFTER AND THUS, IT CANNOT BE SAID TO BE A CASE OF NON-COMPLIANCE OF THE PROVISIONS OF SECTION 249(4)(A) OF THE I.T. ACT. ASSESSEES PAID INSTITUTI ON FEES OF RS.500 IN EACH APPEAL ON THE GROUND THAT IN THE EVE NT OF DISMISSING THE APPEALS AT THE ADMISSION STAGE, ASSE SSEES COULD NOT HAVE AGITATED THE ISSUES ON MERITS BEFORE THE APPELLATE TRIBUNAL AND THUS, IT FALLS WITHIN THE EX CEPTIONS PROVIDED UNDER SECTION 253(6)(D) OF THE I.T. ACT, I N WHICH EVENT, THE TRIBUNAL FEES OF RS.500 IS PAYABLE. THE REGISTRY HAVING RAISED AN OBJECTION WITH REGARD TO SHORT-PAY MENT OF ADMITTED INSTITUTION FEES THE APPEALS ARE LISTED BEFORE THE BENCH. LD. COUNSEL APPEARING ON BEHALF FO THE ASSESSEE, FILED COPIES OF THE FOLLOWING ORDERS OF T HE ITAT TO SUBMIT THAT UNDER IDENTICAL CIRCUMSTANCES, THE ITAT HYDERABAD BENCH OBSERVED THAT INSTITUTION FEES OF R S.500 IS SUFFICIENT IN THE EVENT OF DISMISSAL OF APPEALS FOR NON- PAYMENT OF ADMITTED TAX. I. ORDER DATED 20.01.2015 IN ITA.NOS.1166, 1167, 1168 & 1169/HYD/2014 IN THE CASE OF MR. RAVELA RAMAKRISHNA, HYDERABAD VS. ACIT, CENTRTAL CIRCLE-5, HYDERABAD. II. ORDER DATED 11.02.2011 IN ITA.NO.1079/HYD/2010 IN THE CASE OF MR. A. HARINATH REDDY, HYDERABAD VS. DCIT, CENTRAL CIRCLE-6, HYDERABAD. 3 ITA.NOS.1126, 1128 & 1129/H/2014 & 1164 & 1165/H/20 15 MR. P. MADHUSUDHAN & M/S. SRI SAI PRASANTHI REALTOR S, HYD. 3. THE LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE FURTHER SUBMITTED THAT IN THE CASE OF MR. RAVELLA RAMAKRISHNA THE PLEA OF THE ASSESSEE WAS THAT IF TH E ASSESSEE HAD PAID THE TAX ON RETURNED INCOME OR SOU GHT ADJUSTMENT OF AMOUNT LYING WITH THE REVENUE TOWARDS TAX PAYABLE ON THE RETURNED INCOME, THE ASSESSEE CANNOT BE DENIED A HEARING. IN OTHERWORDS, IT IS FOR THE A.O. TO ADJUST THE AMOUNT SEIZED AGAINST THE ADMITTED TAX PAYABLE IN WHICH EVENT THE REQUIREMENT OF SECTION 249(A)(A) OF THE I.T. ACT CAN BE SAID TO BE DULY CO MPLIED WITH. UNDER THOSE CIRCUMSTANCES, THE BENCH DIRECTED THE LD. CIT(A) TO VERIFY THE FACTS MENTIONED BY THE ASS ESSEE AND IF IT IS FOUND THAT THE CASH SEIZED DURING THE COURSE OF SEARCH/RECOVERED THEREAFTER IS SUFFICIENT TO MEET T HE TAX LIABILITY, THE CIT(A) HAS TO ENTERTAIN THE APPEALS AND THE ASSESSEE SHALL FILE APPLICATION FOR CONDONATION OF DELAY WHICH SHALL BE CONSIDERED BY THE LD. CIT(A) ON MERI TS. IN THE SAID CASE, THE ITAT A BENCH, HYDERABAD FOLLOW ED THE EARLIER DECISION OF ITAT B BENCH HYDERABAD IN THE CASE OF AKR CONSTRUCTIONS LTD., HYDERABAD VS. DCIT, CC-1 (1), HYDERABAD (IN ITA.NO.572/HYD/2015 DATED 30.07.2015) WHEREIN THE BENCH OBSERVED THAT THE APPEAL SHOULD B E DEEMED TO HAVE BEEN FILED ON THE DATE ADMITTED TAX HAS BEEN PAID/ADJUSTED AND THE LD. CIT(A) SHOULD CONSID ER THE APPEAL ON MERITS SUBJECT TO FILING A CONDONATIO N PETITION FOR THE DELAY. 4. BOTH THE LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE AS WELL AS THE LD. D.R. SUBMITTED THAT IN 4 ITA.NOS.1126, 1128 & 1129/H/2014 & 1164 & 1165/H/20 15 MR. P. MADHUSUDHAN & M/S. SRI SAI PRASANTHI REALTOR S, HYD. THESE APPEALS ALSO ASSESSEES FILED LETTERS STATING THAT AMOUNTS SEIZED SHOULD BE ADJUSTED AGAINST THE SELF- ASSESSMENT TAX PAYABLE BUT THE LD. CIT(A) OVERLOOKE D THE SAME. 5. I HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE RECORD. SINCE IDENTICAL ISSUE WAS DECID ED BY THE ITAT A BENCH, HYDERABAD IN THE CASE OF ONE OF THE MEMBERS OF THE GROUP I.E., MR. RAVELLA RAMAKRISHNA, CONSISTENT WITH THE VIEW TAKEN THEREIN, I SET ASIDE THE ORDERS PASSED BY THE CIT(A) AND DIRECT THE CIT(A) T O VERIFY AS TO WHETHER THE CASH SEIZED DURING THE COURSE OF SEARCH/RECOVERED THEREAFTER IS SUFFICIENT TO MEET T HE TAX LIABILITY FOR THE YEARS UNDER CONSIDERATION AND THE CIT(A) IS THEREAFTER DIRECTED TO ENTERTAIN THE APPEALS, SU BJECT TO THE ASSESSEES FILING A CONDONATION PETITION WHICH S HALL BE CONSIDERED BY THE CIT(A) ON MERITS. 6. IN THE RESULT, APPEALS OF THE ASSESSEES ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21.06. 2016. SD/- (D. MANMOHAN) VICE PRESIDENT HYDERABAD DATED 21 ST JUNE, 2016 VBP/- 5 ITA.NOS.1126, 1128 & 1129/H/2014 & 1164 & 1165/H/20 15 MR. P. MADHUSUDHAN & M/S. SRI SAI PRASANTHI REALTOR S, HYD. COPY TO 1. MR. P. MADHUSUDHAN, HYDERABAD. C/O. MR. P. MURALI & CO. CHARTERED ACCOUNTNATS, 6-3-655/2/3, 1 ST FLOOR, SOMAJIGUDA, HYDERABAD-82. 2. M/S. SRI SAI PRASANTHI REALTORS, HYDERABAD. 3. THE ACIT, CENTRAL CIRCLE - 5, HYDERABAD. 4 . CIT(A) - I, HYDERABAD. 5 . CIT(CENTRAL), HYDERABAD. 5. D.R. ITAT B (SMC) BENCH, HYDERABAD. 6. GUARD FILE