Sri M Radhakrishna Murthy, Vijayawada V. The ACIT, Circle-1(1)., Vijayawada

ITA 12/VIZ/2006

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7066 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 4 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 07-01-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 10-01-2006
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G S S GOPINATH
• Assessee Lawyers: S RAMA RAO
• Section: 143(3); 154

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH: VISAKHAPATNAM BEFORE: SRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SRI B.R. BASKARAN, ACCOUNTANT MEMBER I.T.A. NO.12/VIZAG/2006 ASSESSMENT YEAR : 2001-02 M RADHA KRISHNA MURTHY, VIJAYAWADA VS. ACIT CIRCLE-1(1), VIJAYAWADA (APPELLANT) (RESPONDENT) PAN NO. AINPM 6447 Q APPELLANT BY : SHRI S RAMA RAO, ADVOCATE RESPONDENT BY : SHRI G.S.S. GOPINATH, DR O R D E R PER B..R. BASKARAN, ACCOUNTANT MEMBER : 1. THE APPEAL OF THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 30-11-2005 PASSED BY LD CIT(A), VIJAYAWADA AND IT RELATES TO T HE ASSESSMENT YEAR 2001-02. 2. THE EFFECTIVE GROUND RAISED BY THE ASSESSEE READ S AS UNDER: THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) E RRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER PASSE D U/S 154 HOLDING THAT THERE IS NO MISTAKE APPARENT FROM RECORD. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE SEEN THAT THERE IS A CLEAR MISTAKE IN THE INTIMATION U/S 143(1)(A) AND OUGHT TO HAVE DIRECTED THE ASSESSING OFFICER TO MODIFY THE INTIMA TION ALLOWING RELIEF U/S 89 OF THE ACT. 3. THE APPELLANT HEREIN RETIRED FROM ANDHRA BAN K UNDER VOLUNTARY RETIREMENT SCHEME. HE CLAIMED EXEMPTION U/S 10(10C) OF THE AC T AND ALSO RELIEF U/S 89(1) OF THE ACT. THE ASSESSING OFFICER COMPLETED THE ASSES SMENT U/S 143(3) BY REJECTING THE RELIEF CLAIMED U/S 89 OF THE ACT. THE AO RELIE D UPON THE CLARIFICATION GIVEN BY THE CBDT IN LETTER NO. F.NO.174/5/2001 DATED 23.4.2 001 IN THIS REGARD. SUBSEQUENTLY THE ASSESSEE FILED A LETTER DATED 16.8 .2004 INVITED THE ATTENTION OF THE AO TO THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF KERALA FINANCE CORPORATION V CIT (210 ITR 129), WHERE IN IT WAS HE LD THAT A CIRCULAR OF THE CBDT U/S 119 OF THE ACT CANNOT OVER RIDE OR DETRACT FROM THE ACT. THERE AFTER IT APPEARS THAT THE ASSESSEE HAS FILED A PETITION DATE D 30.3.2005. THE AO REJECTED THE SAID PETITION BY STATING THAT THERE IS NO MISTA KE APPARENT FROM THE RECORD. THE 2 ASSESSEE COULD NOT SUCCEED IN HIS APPEAL PREFERRED BEFORE LD CIT(A). HENCE THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 4. WE HAVE HEARD THE PARTIES AND CAREFULLY PERU SED THE RECORD. THE ORIGINAL ASSESSMENT, IN THIS CASE, HAS BEEN COMPLETED U/S 14 3(3) OF THE ACT AND NOT PROCESSED U/S 143(1)(A) AS STATED IN THE GROUNDS OF APPEAL. THE PRESENT APPEAL EMANATES FROM THE ORDER PASSED U/S 154 OF THE ACT. IT IS WELL SETTLED THAT THE DEBATABLE ISSUES CANNOT TREATED AS A MISTAKE APPARE NT FROM RECORD AND HENCE THEY CANNOT BE RECTIFIED IN AN ORDER PASSED U/S 154 OF THE ACT. IN THE CASE OF ITAT HYDERABAD BENCHS ORDER PASSED IN THE CASE OF SRI N. PRAKASH IN ITA NO.93/HYD/2004 IT HAS BEEN OBSERVED THAT THE ISSUE WHETHER THE ASSESSEE IS ENTITLED TO THE RELIEF U/S 89 OF THE ACT HAVE TRAVE LED UP TO THE HIGH COURT AND AS SUCH IT GOES TO PROVE THE DEBATABLE NATURE OF THE I SSUE. SUCH BEING THE CASE, THE RELIEF SOUGHT TO BE CLAIMED BY THE ASSESSEE IN HIS PETITION U/S 154 OF THE ACT, BEING DEBATABLE IN NATURE CANNOT BE ALLOWED IN THE PROCEEDINGS OF SECTION 154. THOUGH THE LD CIT(A) HAS DISMISSED THE APPEAL OF TH E ASSESSEE ON DIFFERENT REASONING, HIS FINAL DECISION DESERVES TO BE UPHELD FOR THE REASONS STATED ABOVE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. PRONOUNCED ACCORDINGLY ON 04-03-2010. SD/- SD/- (SUNIL KUMAR YADAV) (B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PVV/SPS VISAKHAPATNAM DATE : 4 TH MARCH, 2010 A COPY OF THIS ORDER IS FORWARDED TO : 01 SHRI M RADHA KRISHNA MURTHY, C/O SRI S. RAMA RAO , ADVOCATE, 103, INDIRADEVI NILAYAM, 3-6-542/4, STREET NO.7, HIMAYAT NAGAR, HYDERABAD 500029 02 THE ACIT, CIRCLE-1(1), VIJAYAWADA 03 THE CIT (A), VIJAYAWADA, 04 THE CIT, VIJAYAWADA 05 THE DR, ITAT, VISAKHAPAATNAM 06 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY ITAT, VISAKHAPATNAM BENCH