ITO, Ward - 5(3), Hyderabad V. Sri Sunil Kumar D Shah, Hyderabad

ITA 1351/HYD/2014

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0736 (ITAT-HYDERABAD)
• Duration Of Justice: 5 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2019
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 28-11-2019
• Assessment Year: 2006-2007
• Appeal Filed On: 25-07-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NIVEDITA BISWAS
• Keywords: Business income; Additional evidence
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A , HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ITA NO S . 1350 & 1351 /HYD/20 14 ASSESSMENT YEAR: 20 05 - 06 & 2006 - 07 INCOME TAX OFFICER, WARD - 5(3), HYDERABAD. VS. SHRI SUNIL KUMAR D SHAH, 8 - 2 - 401/C/2, STREET NO.1, BANJARA HILLS, HYDERABAD. PAN: AWHPS 5100 R (APPELLANT) (RESPONDENT) ASSESSEE BY: SRI Y. RATNAKAR REVENUE BY: SMT. NIVEDITA BISWAS, DR DATE OF HEARING: 28/11/2019 DATE OF PRONOUNCEMENT: 04 /12/2019 ORDER PER A. MOHAN ALANKAMONY, AM.: THESE TWO APPEALS ARE FILED BY THE REVENUE AGAINST THE ORDERS OF THE LD. CIT(A) - V, HYDERABAD IN APPEAL NOS. 0192 & 193/DCIT CC - 2//CIT(A) - V/2013 - 14, DATED 24/02/2014 PASSED U/S. 143(3) R.W.S 153A & U/S. 250(6) OF THE ACT. 2. THE REVENUE HAS RAISED THE FOLLOWING IDENTICAL GROUNDS IN BOTH OF ITS APP EALS FOR THE AY 2005 - 06 AND 2006 - 07 : - 2 (1) THE ORDER OF THE LD. CIT(A) IS ERRONEOUS IN LAW AND ON FACTS THE OF THE CASE. (2) THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT THE ASSESSEE GROSSLY FAILED TO PRODUCE ANY EVIDENCE IN THE FORM OF BILLS / VOUCHERS EITHER FOR THE AGRICULTURAL EXPENSES OR FOR THE RECEIPTS FOR THE AGRICULTURAL INCOME SO AS TO SUBSTANTIATE THAT THE CLAIM THAT THE LANDS WERE USED FOR AGRICULTURAL PURPOSES. (3) THE LD. CIT(A) OUGHT TO HAVE AFFORDED AN OPPORTU NITY TO THE A.O. BEFORE ADMITTING THE ADDITIONAL EVIDENCE AS REQUIRED UNDER RULE 46A. (4) THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT MERE MENTIONING IN REVENUE RECORDS THAT THESE LANDS ARE AGRICULTURAL LANDS DO NOT CONFER THAT THE LANDS WERE CULTIVATED AND USED FOR AGRICULTURAL PURPOSE. (5) THE LD. CIT(A) ERRED IN IGNORING THE TEST LAID SOWN BY THE HONBLE SUPREME COURT IN THE CASE OF SMT. SAARIFABIBI MOHAMMED IBRAHIM AND OTHERS IN WHICH IT WAS HELD THAT FOR ASCERTAINING WHETHER THE LAND IS AGRICULTURAL, CUMULATIVE FACTS OF AL RELEVANT FACTS FOR AN AGAINST ASSESSEE MUST BE CONSIDERED. (6) THE LD. CIT(A) ERRED IN DELETING THE ADDITIONS OF RS. 11,40,000/, RS . 26,00,000/ - , RS. 26,00,000/ - AND RS. 1,10,84,500/ - FOR THE AY 2005 - 06 AND RS. 39 LAKHS AND RS. 1,50,00,000 FOR THE AY 2006 - 07 RESPECTIVELY BEING RECEIPTS ON SALE OF LANDS SITUATED AT CHILKUR AND KOKAPET TREATED AS BUSINESS RECEIPTS AS ADVENTURE IN THE NATURE OF TRADE. (7) THE LD. CIT(A) ERRED IN NOT APPRECIATING THE FACT THAT THOUGH THE SALE DEED WAS EXECUTED ON 13/04/2006, THE CONSIDERATION WAS RECEI VED IN 2005 - 06 ITSELF IN RESPECT OF THE LAND SITUATED AT KOKAPET. (8) THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT THE ABOVE RECEIPTS WERE NOT OF A CAPITAL ACCRETIONS BUT WERE GAINS MADE IN THE BUSINESS BY ADVENTURE IN THE NATURE OF TRADE WITH A MOTIVE TO MAK E PROFITS. (9) THE LD. CIT(A) ERRED IN NOT APPRECIATING EVIDENCE REQUIRED TO BE PRODUCED BY THE ASSESSEE TO PROVE AGRICULTURAL ACTIVITIES WERE CARRIED OUT ON THE LANDS SOLD. (10) ANY OTHER GROUND OR GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING. 3 3. AT THE OUTSET, LD. DR SUBMITTED BEFORE US THAT THE LD. CIT (A) HAD GRANTED RELIEF TO THE ASSES S EE BASED ON THE ADDITIONAL EVIDENCE SUBMITTED BY THE ASSESSEE FOR THE FIRST TIME WITHOUT CALLING FOR THE REMAND REPORT FROM THE LD. A.O. TO ASCERTAIN THE VERACIT Y AND GENUINENESS OF THE DOCUMENTS . IT WAS THEREFORE ARGUED THAT THE LD. CIT (A) HAD VIOLATED THE PROVISIONS OF SECTION 46A OF THE RULES AND DELETED THE ADDITION . I T WAS THEREFORE PLEADED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE LD. A.O. SO THAT THE LD. AO SHALL BE PROVIDED WITH AN OPPORTUNITY IN ORDER TO VERIF Y THE GENUINENESS AND VERACITY OF THE ADDITIONAL EVIDENCE PRODUCED BY THE ASSESSEE BEFORE THE CIT(A) FOR THE FIRST TIME AND THEREAFTER DECIDE THE ISSUE AFRESH ON MERITS . ON THE OTHER HAND, LD. AR VEHEMENTLY OPPOSED TO THE SUBMISSIONS OF THE LD. DR HOWEVER, HE COULD NOT SUCCESSFULLY CONTROVERT TO THE SUBMISSION OF THE LD. DR. 4. WE HAVE HEARD THE RIVAL SUBMISSI ONS AND CAREFULLY PERUSED THE MATERIALS ON RECORD. CONSIDERIN G THE FACTS OF THE CASE, WE FIND MERITS IN THE SUBMISSION S OF THE LD. DR. IT IS A FACT THAT THE ASSESSEE DID NOT PRODUC E THE ADDITIONAL EVIDENCE SUBMITTED BEFORE THE LD. CIT (A) AT THE TIME OF HEARING BEFORE THE LD. A.O. IT IS ALSO A FACT THAT THE LD. C IT (A) ADMITTING THE ADDITIONAL EVIDENCE , GRANTED RELIEF TO THE ASSESSEE WITHOUT CALLING FOR REMAND REPORT FROM THE LD. A.O. THIS ACTION OF THE LD. CIT (A) IS IN VIOLATION OF RULE 46A OF THE IT RULES, 1962. THEREFORE, IN THE INTEREST OF JUSTICE, WE HEREBY REMIT THE MATTER BACK TO THE FILE OF THE LD. 4 A.O. WITH DIRECTIONS TO EXAMINE THE ADDITIONAL EVIDENCE PRODUCED BEFORE THE LD. CIT(A) FOR THE FIRST TIME AND ALL OTHER RELEVANT MATERIALS ON RECORD AND THEREAFTER DECIDE THE ISSUE AFRESH AFTER AFFORDING REASONABLE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. WE FURTHER MAKE IT CLEAR THAT THE ASSESSEE IS AT LIBERTY TO PRODUCE ANY FURTHER EVIDENCE BEFORE THE LD. AO IN ORDER TO ARGUE HIS CASE. 5. IN THE RESULT, APPEALS OF THE REVENUE ARE ALLOWED FOR STATIST ICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 04 TH DECEMBER , 2019. SD/ - SD/ - (P. MADHAVI DEVI) ( A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED: 04 TH DECEMBER , 2019 OKK COPY TO: - 1) SHRI SUNIL KUMAR D SHAH, 8 - 2 - 401/C/2, STREET NO.1, R.NO.5, BANJARA HILLS, HYDERABAD. 2) THE INCOME TAX OFFICER, WARD - 5(3), 3 RD FLOOR, D - BLOCK, IT TOWERS, MASAB TANK, HYDERABAD. 3) THE CIT(A) - V , HYDERABAD 4) THE ADDL./ JT. CIT - 5 , HYDERABAD 5) THE DR, ITAT, HYDERABAD 6) GUARD FILE