Kilari Satyanarayana, Srikakulam V. The Income Tax Officer, Ward-1, , Srikakulam

ITA 133/VIZ/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 7416 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-04-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 18-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Assessee Lawyers: S V SATYANARAYANA
• Keywords: Opportunity of being heard; Application of stay; Additional evidence; Set aside
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI N.K. CHOUDHRY, HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH, HON'BLE ACCOUNTANT MEMBER I.T.A. NO. 133 /VIZ/2020 (ASST. YEAR : 2013 - 1 4 ) KILARI SATYANARAYANA, PANCHAYAT OFFICER (RETD.) , CHETTUPODILAM, G.SIGADAM, SRIKAKULAM. VS. INCOME TAX OFFICER WARD - 1 , SRIKAKULAM. PAN NO. AHYPK 4362 Q (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.V. SATYANARAYANA , ADV. DEPARTMENT BY : SMT.SUMAN MALIK, SR. DR DATE OF HEARING : 24 / 03 /2021 . DATE OF PRONOUNCEMENT : 06 / 0 4 /2021 . O R D E R PER N.K. CHOUDHRY , JUDICIAL MEMBER THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 29 / 0 1/20 20 IMPUGNED HEREIN PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) [FOR SHORT , LD. COMMISSIONER] , GUNTUR U/SEC. 250(6) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'ACT') FOR THE A.Y. 20 13 - 1 4 . 2 ITA NO. 133 / VIZ /2020 ( KILARI SATYANARAYANA ) 2. IN THIS CASE, THE ASSESSEE HAS CHALLENGED THE ASSESSMENT ORDER BEFORE THE LD. COMMISSIONER AND FILED SOME ADDITIONAL EVIDENCE , WHICH WERE REFERRED BY THE LD. COMMISSIONER TO THE AO AND THE REMAND REPORT WAS CALLED FOR, IN RESPONSE TO WHICH , THE AO SUBMITTED THE REMAND REPOR T ON DATED 10/ 10/2019 WHEREIN IT WAS STATED THAT IT IS TO SUBMIT THAT AS PER ITD SOFTWARE, THE APPELLANT HAS NOT PAID 20% OF TAX ON DISPUTED DEMAND . ON THE BASIS OF THIS FACT , THE LD. COMMISSIONER DISMISSED THE APPEAL OF THE ASSESSEE BY OBSERVING THAT AS THE APPELLANT HAS NOT PAID 20% OF THE TAX ON D IS P U TED DEMAND, THE APPEAL IS DISMISSED ON TECHNICAL GROUNDS . 3 . DURING THE COURSE OF HEARING, LD. AR DRAWN OU R ATTENTION TO FORM NO. 26AS WHEREIN AT SERIAL NO.4, AN AMOUNT OF RS. 1,29,918/ - APPEARS TO BE DEPOSITED ON 15/03/2018 AS AGAINST THE TOTAL OUTSTANDING DEMAND OF RS. 6,49,590/ - AND THE LD. AR SUBMITTED THAT THE ASSESSEE THOUGH HAS ALREADY DEPOSITED MORE THAN 20% OF THE DISPUTED DEMAND, HOWEVER, REASON BEST KNOWN TO THE AO , HE SUBMITTED BEFORE THE LD. COMMISSIONER THAT THE APPELLANT HAS NOT PAID 20% OF THE TAX ON DI S PUTED DEMAND AND THE LD. COMMISSIONER WHILE RELYING UPON THAT PARTICULAR STATEMENT, WRONGLY DISMISSED THE APPEAL OF THE ASSESS IN LIMINE, WHEREAS THE DEPOSIT OF 20% OF TAX ON DISPUTED DEMAND IS NOT NECESSA RY FOR FILING AN APPEAL BEFORE THE LD. COMMISSIONER. 4 . LD. DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. HAVING HEARD THE PAR T IES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ACCORDING TO THE CBDT CIRCULAR F.NO. 404/72/93 - ITCC , 3 ITA NO. 133 / VIZ /2020 ( KILARI SATYANARAYANA ) DATED 31/07/2017 IT IS MANDATED THAT THE AO SHALL GRANT STAY OF DEMAND TILL DISPOSAL OF FIRST APPEAL ON PAYMENT OF 20% OF THE DISPUTED DEMAND , UNLESS THE CASE FALLS IN THE CATEGORY DISCUSSED IN PARA (B) OF THE CIRCULAR . THOUGH THE ASSESSEE HAS ALREADY DEPOSITED RS.1,29,918/ - ON DATED 15/03/2018 AT HIS OWN WISH, HOWEVER IT IS NOT THE CASE OF THE REVENUE THAT THE ASSESSEE HAS SOUGHT AN STAY OF THE DISPUTED DEMAND AND STAY WAS GRANTED SUBJECT TO THE PAYMENT OF 20% O F THE DI SPUTED AMOUNT, HOWEVER THE ASSESSEE DID NOT DEPOSIT THE SAME. THERE IS NOTHING IN OUR KNOWLEDGE AND EVEN OTHERWISE NOTHING MATERIAL AND/OR LAW HAS BEEN BROUGHT AND CITED BEFORE US THAT THE DEPOSIT OF 20% OF THE DISPUTED AMOUNT IS PRE - REQUISITE FOR FILING O F APPEAL BEFORE THE LD. COMMISSIONER . 6 . FROM THE FACTS EMERGED, IT APPEARS THAT BOTH THE AUTHORITIES BELOW MISCONSTRUED THE CBDT C IRCULAR DATED 31/07/2017 (SUPRA) AND ASSUMED THAT FOR FILING OF APPEAL BEFORE THE LD. COMMISSIONER DEPOSI T OF 20% OF THE DISPUTED AMOUNT IS MANDATORY , WHEREAS IN REAL FACT SAID DEPOSIT IS ONLY APPLICABLE IN A CASE, WHERE THE ASSESSEE SEEKS STAY OF DEMAND TILL DISPOSAL OF THE FIRST APPEAL . THE LD. COMMISSIONER DISMISSED THE APPEAL OF THE ASSESSEE IN LIMIN E ON TECHNICAL GROUND S AS REFERRED ABOVE AND NOT DECIDED THE SAME ON MERITS , HENCE, WE ARE INCLINED TO SET ASIDE THE ORDER OF THE LD. COMMISSIONER AND TO REMAND THE CASE BACK TO THE FILE OF THE LD. COMMISSIONER FOR DECISION AFRESH ON MERITS , SUFFICE TO SAY WHILE AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . 4 ITA NO. 133 / VIZ /2020 ( KILARI SATYANARAYANA ) 7 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSE . ORDER PRONOUNCED IN OPEN COURT ON TH IS 0 6 T H DAY OF APRIL , 2021 . S D / - S D / - (D.S. SUNDER SINGH) ( N.K. CHOUDHRY ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 0 6 T H APRIL , 20 2 1 . VR/ - COPY TO: 1. THE ASSESSEE - KILARI SATYANARAYANA, PANCHAYAT OFFICER (RETD.), CHETTUPODILAM, G.SIGADAM, SRIKAKULAM. 2. THE REVENUE INCOME TAX OFFICER, WARD - 1, SRIKAKULAM. 3. THE PR. CIT - 2 , VISAKHAPATNAM. 4. THE CIT(A) - 2, GUNTUR. 5. THE D.R . , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.