T S Mohana, Hyderabad, Hyderabad V. ITO, Ward-13(3), Hyd, Hyderabad

ITA 1219/HYD/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6037 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 14-03-2017
• Assessment Year: 2004-2005
• Appeal Filed On: 19-10-2015
• Court: TRIBUNAL
• Department Lawyers: K J RAO
• Assessee Lawyers: S RAMA RAO
• Keywords: Revision of order
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B (SMC), HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER I.T.A. NO. 1219/HYD/2015 ASSESSMENT YEAR: 2004-05 T.S. MOHANA, HYDERABAD [PAN: ADZPT3788J] VS INCOME TAX OFFICER, WARD-13(3), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI S. RAMA RAO, AR FOR REVENUE : SHRI K.J. RAO, DR DATE OF HEARING : 14-03-2017 DATE OF PRONOUNCEMENT : 17-03-2017 O R D E R THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF T HE COMMISSIONER OF INCOME TAX (APPEALS)-4, HYDERABAD D ATED 21-07-2015, DISMISSING THE APPEAL ON THE REASON THAT TH E IMPUGNED CONSEQUENTIAL ORDER WAS PASSED AS PER THE DI RECTIONS OF THE CIT U/S. 263 INCOME TAX ACT [ACT], WHICH COULD NOT BE DECIDED BY THE CIT(A). 2. THERE IS A DELAY OF FOURTEEN DAYS WITH PRAYER FOR CONDONATION AS ASSESSEE WAS STATIONED IN USA AT THE RELEVANT POINT O F TIME AND SIGNING AND FORWARDING THE PAPERS TOOK SOME TIME. IN FACT, THE AFFIDAVIT FILED WAS AUTHORIZED IN NEW JERSEY. CONSIDE RING THE PRAYER, I AM OF THE OPINION THAT THERE IS SUFFICIENT REA SON TO FILE THE I.T.A. NO. 1219/HYD/2015 T.S. MOHANA :- 2 - : APPEAL BELATEDLY. HENCE, THE DELAY IS CONDONED AND A PPEAL IS ADMITTED. 3. BRIEFLY STATED, ASSESSEE IS AN INDIVIDUAL DERIVING SALARY AS AN ASSOCIATE PROFESSOR IN DR. B.R. AMBEDKAR OPEN UNIVER SITY. FOR THE AY. 2004-05, THE ASSESSMENT U/S. 143(3) WAS MADE ON 3 1-12-2007 IN WHICH ASSESSING OFFICER (AO) STATED THAT THE ASSESSM ENT WAS MADE ON PROTECTIVE BASIS. THE CIT WAS OF THE OPINION TH AT ASSESSMENT SHOULD HAVE BEEN PASSED ON SUBSTANTIVE BASI S. ACCORDINGLY, HE INITIATED PROCEEDINGS U/S. 263 AND VI DE HIS ORDER DT. 17-11-2008, DIRECTED THE AO TO PASS AN ORDER ON SU BSTANTIVE BASIS. THE AO IN THE RE-ASSESSMENT DETERMINED THE TOTA L INCOME AT RS. 19,40,531/- AS WAS DONE IN THE EARLIER ASSESSMEN T, BUT ON SUBSTANTIVE BASIS. THE ADDITION IS MAINLY WORKING OF LONG TERM CAPITAL GAIN AT RS. 17,97,897/-. ASSESSEE CHALLENGED THE SAID ASSESSMENT ON MERITS STATING THAT ASSESSEE HAS NOT EARNED THE CAPITAL GAINS. LD.CIT(A) DID NOT ENTERTAIN THE APPEAL ON THE REASON THAT THE ORDER IS CONSEQUENT TO THE DIRECTIONS OF THE CIT, HENCE BEING AN EQUAL AUTHORITY, CIT(A) CANNOT ADJUDICATE. H ENCE THE PRESENT APPEAL. 4. IT WAS THE SUBMISSION OF THE LD. COUNSEL THAT THE CIT DID NOT GIVE ANY DIRECTION WITH REFERENCE TO THE MERITS OF THE A DDITION, BUT THE PROCEEDINGS U/S 263 WERE INITIATED ONLY TO DIRECT THE AO TO COMPLETE THE ASSESSMENT ON A SUBSTANTIVE BASIS, RATHER TH AN ON A PROTECTIVE BASIS. IN VIEW OF THAT, SINCE NO DIRECTIONS WERE GIVEN ON THE ISSUE OF COMPUTATION OF INCOME, THE CIT(A) COULD HA VE ADJUDICATED THE ISSUE ON MERITS. IT WAS THE REQUEST THAT TH E MATTER I.T.A. NO. 1219/HYD/2015 T.S. MOHANA :- 3 - : MAY BE SET ASIDE TO THE FILE OF THE CIT(A) TO CONSIDER THE ISSUES ON MERITS. 5. LD.DR FAIRLY ACCEPTED THE FACTUAL POSITION WITH REF ERENCE TO THE ORDER OF THE CIT U/S. 263. 6. I HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE ORDERS ON RECORD. AS FAR AS THE PROCEEDINGS U/S.263 ARE CONCERNED, THEY ARE LIMITED TO THE ISSUE WHETHER ASSESSMENT HAS TO BE COMPLETED ON PROTECTIVE BASIS OR ON SUBSTANTIVE BASIS ? THERE ARE NO DIRECTIONS WITH REFERENCE TO THE COMPUTATION OF INCOM E OR THE ISSUES CONSIDERED IN THE ASSESSMENT. THEREFORE, I AM OF THE OPINION THAT CIT(A) COULD HAVE CONSIDERED THE ISSUE ON MERITS, AS THERE IS NO DIRECTION FROM THE CIT ON THE QUANTUM ISSUES. IN VIE W OF THAT SETTING ASIDE THE ORDER OF THE CIT(A), I HEREBY RESTORE THE APPEAL TO THE FILE OF CIT(A) TO CONSIDER THE APPEAL AFRESH ON ME RITS. THE GROUNDS ARE CONSIDERED ALLOWED FOR STATISTICAL PURPOS ES. 7. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH MARCH, 2017 SD/- (B. RAMAKOTAIAH) ACCOUNTANT MEMBER HYDERABAD, DATED 17 TH MARCH, 2017 TNMM I.T.A. NO. 1219/HYD/2015 T.S. MOHANA :- 4 - : COPY TO : 1. T.S. MOHANA, HYDERABAD. C/O. SRI S. RAMA RAO, ADVOCATE, FLAT NO. 102, SHRIYAS ELEGANCE, 3-6-643, STREET NO. 9, HIMAYAT NAGAR, HYDERABAD. 2. THE INCOME TAX OFFICER, WARD-13(3), HYDERABAD. 3. COMMISSIONER OF INCOME TAX(APPEALS)-4, HYDERABAD . 4. THE COMMISSIONER OF INCOME TAX-4, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.