A Narender, Hyderabad V. ACIT,Central Circle-5, Hyderabad

ITA 1170/HYD/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6355 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 28-07-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 10-06-2014
• 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 BENCH A, HYDERABAD BEFORE SMT P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER ITA NOS. 1170, 1171 & 1172/HYD/2014 ASSESSMENT YEARS: 2004-05, 2008-09 & 2009-10 A. NARENDER, HYDERABAD PAN ADYPA7133K VS. ASST. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE 5, HYDERABAD. (APPELLANT) (RESPONDENT) ITA NOS. 1127 & 1130/HYD/2014 ASSESSMENT YEARS: 2006-07 & 2009-10 P. MADHUSUDHAN, HYDERABAD PAN- ADWPR 8821K VS. ASST. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE 5, HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI P. MURALI MOHAN RAO REVENUE BY : SHRI K.J. RAO DATE OF HEARING 28-07-2016 DATE OF PRONOUNCEMENT 05-08-2016 O R D E R PER S. RIFAUR RAHMAN, A.M.: THESE APPEALS, FILED BY THE ASSESSEES HEREIN, ARE DIRECTED AGAINST THE ORDERS PASSED BY THE CIT(A)-I, HYDERABA D WHEREIN THE APPEALS WERE DISMISSED IN LIMINE ON THE LIMITED GRO UND THAT THE ADMITTED TAX WAS NOT PAID BY THE ASSESSEES. 2. ACCORDING TO THE LD. CIT(A), THE PROVISIONS CON TAINED IN SECTION 249(4)(A) OF THE I.T. ACT ARE MANDATORY IN NATURE AND IN THE 2 ITA NO 1170/HYD/14 AND OTHERS A. NARENDER AND OTHERS EVENT OF NON-PAYMENT OF TAX ON ADMITTED INCOME ASSE SSEE HAS NO RIGHT TO PROSECUTE THE APPEALS. ACCORDINGLY, THE AP PEALS WERE NOT ADMITTED FOR ADJUDICATION. AGGRIEVED BY THE ORDERS PASSED BY THE LD. CIT(A), ASSESSEES HEREIN PREFERRED APPEALS CONTENDI NG INTER ALIA, THAT THE ADMITTED TAX SHOULD HAVE BEEN ADJUSTED AGAINST THE CASH SEIZED FROM THE ASSESSEES/ RECOVERS THEREAFTER AND THUS, I T CANNOT BE SAID TO BE A CASE OF NON-COMPLIANCE OF THE PROVISIONS OF SE CTION 249(4)(A) OF THE I.T. ACT. ASSESSEES PAID INSTITUTION FEES OF RS .500 IN EACH APPEAL ON THE GROUND THAT IN THE EVENT OF DISMISSING THE A PPEALS AT THE ADMISSION STAGE, ASSESSEES COULD NOT HAVE AGITATED THE ISSUES ON MERITS BEFORE THE APPELLATE TRIBUNAL AND THUS, IT F ALLS WITHIN THE EXCEPTIONS PROVIDED UNDER SECTION 253(6)(D) OF THE I.T. ACT, IN WHICH EVENT, THE TRIBUNAL FEES OF RS.500 IS PAYABLE. THE REGISTRY HAVING RAISED AN OBJECTION WITH REGARD TO SHORT-PAYMENT OF ADMITTED INSTITUTION FEES THE APPEALS ARE LISTED BEFORE THE BENCH. LD. COUNSEL APPEARING ON BEHALF FO THE ASSESSEE, FILED COPIES O F THE FOLLOWING ORDERS OF THE ITAT TO SUBMIT THAT UNDER IDENTICAL C IRCUMSTANCES, THE ITAT HYDERABAD BENCH OBSERVED THAT INSTITUTION FEES OF RS.500 IS SUFFICIENT IN THE EVENT OF DISMISSAL OF APPEALS FOR NONPAYMENT OF ADMITTED TAX. I. ORDER DATED 20.01.2015 IN ITA.NOS.1166, 1167, 1 168 & 1169/HYD/2014 IN THE CASE OF MR. RAVELA RAMAKRISHN A, 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, CENT RAL CIRCLE-6, HYDERABAD. 3. THE LD. COUNSEL APPEARING ON BEHALF OF THE ASSE SSEE FURTHER SUBMITTED THAT IN THE CASE OF MR. RAVELLA RAMAKRISH NA THE PLEA OF THE ASSESSEE WAS THAT IF THE ASSESSEE HAD PAID THE TAX ON RETURNED INCOME OR SOUGHT ADJUSTMENT OF AMOUNT LYING WITH TH E REVENUE TOWARDS TAX PAYABLE ON THE RETURNED INCOME, THE ASS ESSEE CANNOT BE DENIED A HEARING. IN OTHER WORDS, IT IS FOR THE A.O . TO ADJUST THE AMOUNT SEIZED AGAINST THE ADMITTED TAX PAYABLE IN W HICH EVENT THE 3 ITA NO 1170/HYD/14 AND OTHERS A. NARENDER AND OTHERS REQUIREMENT OF SECTION 249(4)(A) OF THE I.T. ACT CA N BE SAID TO BE DULY COMPLIED WITH. UNDER THOSE CIRCUMSTANCES, THE BENCH DIRECTED THE LD. CIT(A) TO VERIFY THE FACTS MENTIONED BY THE ASSESSE E AND IF IT IS FOUND THAT THE CASH SEIZED DURING THE COURSE OF SEARCH/RE COVERED THEREAFTER IS SUFFICIENT TO MEET THE 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) O N MERITS. IN THE SAID CASE, THE ITAT A BENCH, HYDERABAD FOLLOWED T HE EARLIER DECISION OF ITAT B BENCH HYDERABAD IN THE CASE OF AKR CONSTRUCTIONS LTD., HYDERABAD VS. DCIT, CC-1(1), HY DERABAD (IN ITA.NO.572/HYD/2015 DATED 30.07.2015) WHEREIN THE B ENCH OBSERVED THAT THE APPEAL SHOULD BE DEEMED TO HAVE BEEN FILED ON THE DATE ADMITTED TAX HAS BEEN PAID/ADJUSTED AND THE LD. CIT (A) SHOULD CONSIDER THE APPEAL ON MERITS SUBJECT TO FILING A C ONDONATION PETITION FOR THE DELAY BY THE ASSESSEE. 4. BOTH THE LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE AS WELL AS THE LD. D.R. SUBMITTED THAT IN THESE APPEAL S ALSO ASSESSEES FILED LETTERS STATING THAT AMOUNTS SEIZED SHOULD BE ADJUSTED AGAINST THE SELF ASSESSMENT TAX PAYABLE BUT THE LD. CIT(A) OVERLOOKED THE SAME. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL FACTS ON RECORD. THE ISSUE IN DISPUTE IS SQUARELY C OVERED BY THE DECISION OF THE SMC BENCH OF THIS TRIBUNAL IN ONE O F THE ASSESSEES OWN CASE (NAMELY P. MADHUSUDHAN) FOR AYS 2005-06, 2 007-08 AND 2008-09 IN ITA NOS. 1126, 1128 & 1129/HYD/2014 VIDE ORDER DATED 21/06/2016 ( A COPY OF THE ORDER IS AVAILABLE ON RE CORD), WHEREIN THE BENCH HAS HELD AS FOLLOWS: 5. I HAVE CONSIDERED THE RIVAL CONTENTIONS AND PER USED THE RECORD. SINCE IDENTICAL ISSUE WAS DECIDED BY THE I TAT A BENCH, HYDERABAD IN THE CASE OF ONE OF THE MEMBERS OF THE GROUP I.E., MR. RAVELLA RAMAKRISHNA, CONSISTENT WI TH THE VIEW 4 ITA NO 1170/HYD/14 AND OTHERS A. NARENDER AND OTHERS TAKEN THEREIN, I SET ASIDE THE ORDERS PASSED BY THE CIT(A) AND DIRECT THE CIT(A) TO VERIFY AS TO WHETHER THE CASH SEIZED DURING THE COURSE OF SEARCH/RECOVERED THEREAFTER IS SUFFIC IENT TO MEET THE 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 SHALL BE CONSIDERED BY THE CIT(A) ON MERITS. 6. AS THE ISSUE IN THE PRESENT CASES ARE MATERIALLY IDENTICAL TO THAT OF THE SMC BENCH DECIDED IN THE ONE OF THE ASSESSEE CASE (SUPRA) AND IN THE CASE OF M/S SRI SAI PRASANTHI REALTORS ( ITA NO. 1164 & 1165/H/2014), RESPECTFULLY FOLLOWING THE SAME, WE R EMIT THE ISSUE BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO ADJUDICATE THE APPEALS FOLLOWING THE SMC ORDER (SUPRA). 7. IN THE RESULT, APPEALS OF THE ASSESSEES ARE TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 5 TH AUGUST, 2016. SD/- SD/- (P. MADHAVI DEVI) (S. RIFAUR RAH MAN) JUDICIAL MEMBER A CCOUNTANT MEMBER HYDERABAD, DATED: 5 TH AUGUST, 2016 KV COPY TO:- 1) A. NARENDER, 2) P. MADHUSUDHAN, C/O P. MURALI & CO., CAS., 6-3-655/2/3, 1 ST FLOOR, SOMAJIGUDA, HYDERABAD 500 082 2) ACIT, CC-5, HYDERABAD 3) CIT(A) - I, HYDERABAD 4) CIT (CENTRAL , HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDE RABAD. 5 ITA NO 1170/HYD/14 AND OTHERS A. NARENDER AND OTHERS S.NO. DESCRIPTION DATE INTLS 1. DRAFT DICTATED ON SR.P.S./P.S 2. DRAFT PLACED BEFORE AUTHOR SR.P.S/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.P.S./PS SR.P.S./P.S 6. KEPT FOR PRONOUNCEMENT ON SR. P.S./P.S. 7. FILE SENT TO THE BENCH CLERK SR.P.S./P.S 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER