ACIT, Circle-6(1), Hyd, Hyderabad V. Dr. Burra Narsaiah, Hyd, Hyderabad

ITA 1189/HYD/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5943 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 09-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: U MINICHANDRAN
• Assessee Lawyers: P MURALI MOHAN RAO

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SMT P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ITA NO. ASST. YEAR APPELLANT RESPONDENT 1184/H/2016 2004-05 ACIT, CIRCLE-6(1) HYDERABAD SHRI BURRA NARASAIAH, HYDERABAD PAN ABXPB9225A 1185/H/2016 2005-06 -DO- -DO- 1186/H/2016 2006-07 -DO- -DO- 1187/H/2016 2007-08 -DO- -DO- 1188/H/2016 2008-09 -DO- -DO- 1189/H/2016 2009-10 -DO- -DO- 1190/H/2016 2010-10 -DO- -DO- REVENUE BY : SMT. U. MINI CHANDRAN, ASSESSEE BY : SHRI P. MURALI MOHAN RAO, DATE OF HEARING 15-12-2016 DATE OF PRONOUNCEMENT 21-12-2016 O R D E R PER BENCH: THESE SEVEN APPEALS ARE BY REVENUE AGAINST THE ORDER S OF CIT(A)-6, HYDERABAD, ALL DATED 24-06-2016, FOR A.Y. 2004-05 TO A.Y. 2011-12. IN ALL THE YEARS REVENUE IS AGGRIEVED ON THE DELETION OF THE PENALTY BY THE CIT(A). REVENUE HAS R AISED SIMILAR GROUNDS IN ALL THE YEARS WHICH ARE AS UNDER: 2 1184-1190/HYD/2016 BURRA NARSAIAH, HYDERABAD 1. THE LEARNED CIT(APPEALS) ERRED BOTH IN LAW AND ON F ACTS OF THE CASE. 2. THE LEARNED CIT(APPEALS) ERRED IN DELETING THE PENA LTY LEVIED, BY RELYING ON THE DECISION OF THE HONBLE ITAT, HYDERA BAD, DESPITE THE FACT THAT THE RELIEF ALLOWED ON QUANTUM ADDITIO N HAS BEEN APPEALED BEFORE HONBLE JUDICATURE OF HIGH COURT, A NDHRA PRADESH AND TELANGANA AT HYDERABAD. 3. ANY OTHER GROUND(S) THAT MAY BE URGED AT THE TIME O F HEARING . 2. BRIEFLY STATED, ASSESSEE IS A VISITING CONSULTANT GEN ERAL SURGEON TO M/S ADITYA HOSPITAL, HYDERABAD. SEARCH A ND SEIZURE OPERATIONS WERE CONDUCTED ON 25-03-2010 ON M/S ADITYA HOSPITAL, HYDERABAD AND RESIDENTIAL PREMISES OF THE AS SESSEE. IN RESPONSE TO THE NOTICE U/S 153A, ASSESSEE FILED RETURN OF INCOME AND IN THE CONSEQUENTIAL ASSESSMENTS COMPLETED VARIOU S ADDITIONS HAVE BEEN MADE. THESE WERE SUBJECT MATTER O F APPEAL BEFORE THE ITAT AND ITAT VIDE ITS ORDERS ITA NO. 812- 818/HYD/2014 DATED 02-09-015, HAD DELETED CERTAIN AD DITIONS AND RESTORED SOME OF THE ISSUES FOR VERIFICATION TO THE AUTHORITIES. A.O. HAS INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT, AT THE TIME OF COMPLETION OF ASSESSMENT AND, AS THE ADDITION S WERE CONFIRMED BY LD.CIT(A), A.O. IMPOSED PENALTY IN RES PECTIVE ASSESSMENT YEARS AS UNDER: A.Y PENALTY (RS) 2004-05 2,60,150/- 2005-06 3,87,302/- 2006-07 3,07,323/- 2007-08 3,40,553/- 2008-09 18,01,544/- 2009-10 38,49,372/- 2010-11 17,45,150/- 3. FOR DISPOSING OF THE PRESENT APPEALS, THE FACTS IN A.Y. 2004- 05 ARE DISCUSSED IN DETAIL. IN THIS ASSESSMENT YEAR T HERE WERE 3 1184-1190/HYD/2016 BURRA NARSAIAH, HYDERABAD THREE ADDITIONS MADE, TOTALLING TO RS. 7,36,000/-. ITA T VIDE ITS ABOVE REFERRED ORDER DATED 02-09-2015 HAD DELETED TH E ADDITIONS OF RS. 7,36,000/-, MADE ON ACCOUNT OF UNEXPLAINED LO AN AND SALARY EXPENDITURE RESPECTIVELY. CONSEQUENTLY, THE LD . CIT(A) DELETED THE PENALTY STATING AS UNDER: 05.2 ANY CONCEALMENT PENALTY IS IMPOSABLE ON THE A MOUNT OF TAX SOUGHT TO BE EVADED. AS THE ADDITIONS STAND DELETE D, THERE IS NO CONCEALMENT / INACCURATE PARTICULARS OF INCOME IN R ESPECT OF THE APPELLANT IN WHICH TAX WAS SOUGHT TO BE EVADED AND CORRESPONDINGLY THERE ARISES NO OCCASION TO IMPOSE PENALTY U/S 271(1)(C) IS CANCELLED. 4. LD. DR ADMITTED THE FACT THAT ITAT HAS DELETED THE AD DITIONS AND REVENUE IS AGGRIEVED OF ONLY OF PENALTY ON THOSE ADDITIONS WHICH WERE DELETED BY THE ITAT, AS QUANTUM ADDITION S HAD BEEN APPEALED BEFORE THE HONBLE JUDICATURE OF HIGH COURT OF ANDHRA PRADESH AND TELANGANA AT HYDERABAD. 5. LD. AR HOWEVER, SUBMITTED THAT THERE IS NO SCOPE FOR LEVY OF PENALTY AS ADDITIONS WERE DELETED. WITH REFERENCE TO THE CONTENTION THAT QUANTUM APPEAL IS PENDING BEFORE THE HO NBLE HIGH COURT OF ANDHRA PRADESH, IT WAS SUBMITTED THAT ITAT ON SIMILAR FACTS IN THE CASE OF ACIT, KURNOOL VS MG BRO THERS AUTOMOBILES PVT., LTD. (ONE OF US, JUDICIAL MEMBER IS A PARTY) DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AND RELIE D ON THAT ORDER. 6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSE D THE ORDERS OF THE LD. CIT(A). EVEN THOUGH, REVENUE HAS CONTESTED ONLY ONE ISSUE IN ALL THESE APPEALS, I.E. PENALTY LE VIED ON THE ADDITIONS DELETED BY THE ITAT WHICH ARE PENDING IN THE APPEAL BEFORE THE HONBLE HIGH COURT, THERE ARE OTHER ADDITION S ALSO ON WHICH PENALTY WAS DELETED BY THE LD. CIT(A) ON MERITS . SOME OF 4 1184-1190/HYD/2016 BURRA NARSAIAH, HYDERABAD THE PENALTIES WERE DELETED INVOKING THE PRINCIPLES LAI D DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF RELIANCE PETRO P RODUCTS PVT. LTD., 322 ITR 158. AS SEEN FROM THE GROUNDS OF APPEA L, THE REVENUE IS CONTESTING ONLY ON THE AMOUNT OF PENALTY THAT HAS BEEN DELETED BY THE CIT(A) ON THE GROUND THAT ITAT HAS DELETED ADDITIONS. ACCORDING TO THE GROUNDS OF APPEAL RAISED BY THE REVENUE, THE DECISION OF THE ITAT DELETING THE ADDITIO N IN ITA NO. 812-818/HYD/2014 ON 02-09-2015, HAS NOT BEEN ACCEPTED AS THE DEPARTMENT IS IN FURTHER APPEAL BEFORE THE HONBLE HIGH COURT. HOWEVER, WE FIND THAT THE HONBLE HIGH COURT HAS NOT STAY ED THE ORDER OF THE ITAT NOR HAS SET ASIDE THE SAME. REVENU E HAS ALSO NOT PLACED ON RECORD THAT THE APPEALS HAVE BEEN ADMITTED BY THE HONBLE HIGH COURT. MERELY BECAUSE THE REVENUE HAS F ILED AN APPEAL BEFORE THE HIGHER FORM, THE ORDER DOES NOT LOSE ITS PRECEDENT VALUE. THE PRINCIPLES LAID DOWN BY THE COO RDINATE BENCH IN THE CASE OF ACIT, KURNOOL VS MG BROTHERS AU TOMOBILES PVT., LTD.IN ITA NO 785/HYD/2015 DT. 09.10.2015 ARE S AME. WE FIND THAT LD. CIT(A) HAS DELETED THE PENALTY AS SAID A DDITIONS WERE DELETED BY THE ITAT. AS THE ADDITION STANDS DELETED, TH ERE IS NO SCOPE TO IMPOSE ANY PENALTY U/S 271(1)(C). WE DO NO T SEE ANY REASON TO INTERFERE WITH THE ORDERS OF THE CIT(A). ACCO RDINGLY, APPEALS IN ALL THESE YEARS ARE DISMISSED. 7. IN THE RESULT, ALL THE REVENUES APPEALS ARE DISMI SSED PRONOUNCED IN THE OPEN COURT ON 21 ST DECEMBER 2016. SD/- SD/- (P. MADHAVI DEVI) (B. RAMAKOTAI AH) JUDICIAL MEMEBER ACCOUNTANT M EMBER HYDERABAD, DATED: 21 ST DECEMBER, 2016 5 1184-1190/HYD/2016 BURRA NARSAIAH, HYDERABAD KRK COPY TO:- 1) SHRI DR B NARASAIAH, 6-3-609/14, ANANDNAGAR, KHAIRATABAD, HYDERABAD. 2) ACIT, CIR-6(1), HYDERABAD. 3) CIT-6, HYDERABAD. 4 PR. CIT-6, HYDERABAD. 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDERAB AD. 6) GUARD FILE S.NO. DESCRIPTION DATE INTLS DS1. DRAFT DICTATED ON 15-12-16 PS 2. DRAFT PLACED BEFORE AUTHOR 16-12-16 PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 5 APPROVED DRAFT COMES TO THE SR.P.S./PS 6. KEPT FOR PRONOUNCEMENT ON 7. FILE SENT TO THE BENCH CLERK 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER