Dr. Shobha Pawar, Adilabad, Adilabad V. ITO, Ward-1, Adilabad, Adilabad

ITA 1406/HYD/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6266 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 10-11-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 14-12-2015
• Court: TRIBUNAL
• Department Lawyers: A SITARAMA RAO
• Assessee Lawyers: G SHYAM AGARAWAL
• Keywords: Period of limitation; Assessment record

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SMT P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER ITA NO. 1406/HYD/2015 ASSESSMENT YEAR: 2007-08 DR SHOBHA PAWAR ADILABAD PAN ACUPP3780G VS. THE INCOME TAX OFFICER WARD-1 ADILABAD (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G. SHYAM AGARAWAL REVENUE BY : SHRI A. SITARAMA RAO DATE OF HEARING : 03-01-2017 DATE OF PRONOUNCEMENT : 11-01-2017 ORDER PER P. MADHAVI DEVI, J.M.: THIS IS THE ASSESSEES APPEAL FOR THE A.Y. 2007-08 , AGAINST THE ORDER OF THE CIT(A)-5, HYDERABAD, DATED 30-09- 2015. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. 1. THAT THE LD.CIT(A), HYDERABAD HAS ERRED IN DISM ISSING THE APPEAL OF THE APPELLANT ON THE GROUNDS THAT THE ASS ESSMENT ORDER PASSED BY THE LD. ITO WAS WITHIN TIME LIMIT & THE ADDITION OF RS. 4.16 LAKHS AS UNEXPLAINED INVESTMEN TS IS JUSTIFIED. 2. THE LD. CIT (A) HAS ERRED AND IGNORE TO ASK THE LD. ITO TO ESTABLISH THE ACTUAL DATE OF ASSESSMENT ORDER WITH EVIDENCE. IF THE ORDER WAS PASSED ACTUALLY ON 09.12.2009 WHY THE RE WAS AN EXTRAORDINARY DELAY IN ITS SERVICE UPON THE ASSESSE E I.E. 12.01.2010 (09.12.2009 TO 11.01.2010 A LONG GAP OF 34 DAYS BETWEEN DATE OF ORDER AND DATE OF SERVICE UPON THE ASSESSEE). 3. THAT THE LD. CIT (A) HAS ERRED IN DISMISSING THE APPEAL OF THE ASSESSEE BY IGNORING THE RATIO LAID DOWN IN HON'BLE HIGH COURTS LATEST JUDGMENTS WHICH ARE FULLY APPLICABLE IN THIS CASE. 4 DTR 2 ITA NO. 1406/HYD/2015 DR SHOBHA PAWAR, ADILABAD. (P&H) 162, 234 ITR 187, 190 ITR 464, 139 ITR 793, 2 09 ITR 52,30 DTR (JD) (TRIP.) 413 & 257 ITR 198. 4. THAT THE APPEAL IS FILED WELL WITHIN TIME AS THE ORDER OF THE LD. CIT (A) WAS COMMUNICATED TO THE APPELLANT ON 14 /10/2015. 5. THAT THE ORDER OF THE LD. CIT (A) BE SET-ASIDE A ND THE ASSESSMENT ORDER PASSED U/S 143 (3) DATED 09.12.200 9, MAY BE DECLARED NULL AND VOID AS THE ASSESSMENT ORDER IS N ON-EST IN LAW, INEFFECTIVE AND IS BARRED BY LIMITATION, HAVIN G BEEN PASSED BEYOND THE PERIOD OF LIMITATION PRESCRIBED UNDER LA W. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD AND DISPOSED O FF. 2. IN ORDER TO ADJUDICATE THE ABOVE GROUNDS AND ALS O TO VERIFY IF THE ASSESSMENT ORDER WAS ACTUALLY PASSED ON 09- 12-2009 OR WITHIN THE PERIOD OF THE LIMITATION AS C LAIMED BY THE ASSESSEE, THE LD. DR WAS DIRECTED TO PRODUCE THE ASSESSMENT RECORDS. TODAY, I.E. ON 03-01-2017, THE LD. DR HAS PRODUCED THE RECORDS. ON PERUSAL OF THE SAME, WE FIND THAT THE ASSESSMENT ORDER IS DATED 09-12-2009 AND T HE SHOW CAUSE NOTICE FOR THE LEVY OF PENALTY U/S 271(1 )(C) HAS ALSO BEEN FOUND TO BE ISSUED ON THE SAME DATE. FUR THER, THE ASSESSMENT ORDER HAS BEEN SERVED ON THE ASSESSE E THROUGH A NOTICE SERVER. THEREFORE, WE HAVE NO RE ASON TO INTERFERE WITH THE ORDER OF THE CIT(A) ON THIS ISSU E AND THE ASSESSEES GROUNDS OF APPEAL ON THE VALIDITY OF THE ASSESSMENT ORDER, ARE REJECTED. 3. AS REGARDS THE MERITS OF THE ADDITION MADE BY TH E A.O AND CONFIRMED BY THE CIT(A). THE LD. DR HAS POINTE D OUT THAT THE ASSESSEE HAS NOT RAISED ANY GROUND OF APPE AL ON THE MERITS OF THE ADDITION. HOWEVER, WE FIND THAT IN GROUND NO.1, THE ASSESSEE HAS ALSO CHALLENGED THE ADDITION OF RS. 4,16,000/-. THEREFORE, WE PROCEED TO DISPOSE OF TH E APPEAL 3 ITA NO. 1406/HYD/2015 DR SHOBHA PAWAR, ADILABAD. ON MERITS AS WELL. IT IS THE CASE OF THE ASSESSEE T HAT THE ASSESSEE HAS CONSTRUCTED A CLINIC OVER A PERIOD OF TWO YEARS, AND AS PER THE BOOKS OF ACCOUNT OF THE ASSES SEE THE INVESTMENT IN CONSTRUCTION OF CLINIC AS ON 31-03-20 07 WAS RS. 20,15,000/- AND THE ASSESSEE HAS SUBSEQUENTLY INVESTED A FURTHER, AMOUNT OF RS. 4 LAKHS DURING TH E F.Y RELEVANT TO THE A.Y. 2008-09 AND THIS ISSUE HAS ALS O BEEN BROUGHT TO THE NOTICE OF THE A.O. 4. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE DVO HAS DETERMINED THE VALUE OF PROPERTY AT RS. 24,31,000/- VIDE HIS REPORT DATED 30-10-2009 FOR TH E COMPLETELY CONSTRUCTED PROPERTY AS IT STOOD ON THE DATE OF INSPECTION I.E. 09-10-09 AND SUBMITTED THAT IF THE INVESTMENT IN BOTH THE YEARS IS TAKEN INTO CONSIDER ATION, THEN, THERE IS NO DIFFERENCE IN THE VALUES SUBMITTE D BY THE ASSESSEE AND THE VALUE TAKEN BY THE DVO. THUS ACCO RDING TO HIM, THE ASSESSEE HAS STRONG CASE ON MERITS AND ADDITION HAS TO BE DELETED. 5. THE LD. DR, ON THE OTHER HAND SUPPORTED THE ORDE RS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE DVO HA D VALUED THE PROPERTY WHICH WAS STATED BY THE ASSESSE E TO HAVE BEEN COMPLETED BY 31-03-2007 AND HAVE THERE CA NNOT BE ANY FURTHER EXPENDITURE DURING THE F.Y. 2007-08. 6. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE MATERIAL ON RECORD, WE FIND THAT THE ASSESSEE HAS M ADE A CLAIM BEFORE THE A.O. AS WELL AS THE CIT(A) THAT TH E INVESTMENTS IN THE CONSTRUCTION OF THE BUILDING (CL INIC) WAS OVER A PERIOD OF TWO YEARS. DURING THE F.Y. RELEVA NT TO THE 4 ITA NO. 1406/HYD/2015 DR SHOBHA PAWAR, ADILABAD. A.Y. 2007-08, THE ASSESSEE HAS CLAIMED TO HAVE INVE STED SUM OF RS. 20,31,000/- AND DURING THE F.Y. RELEVANT TO THE A.Y. 2008-09, A FURTHER SUM OF RS. 4.00 LAKHS AND T HIS IS ALSO REFLECTED IN THE BALANCE SHEET AS ON 31-03-200 8. THEREFORE, THE CONTENTION OF THE LD. DR THAT THE CONSTRUCTION OF THE BUILDING WAS COMPLETED ON 31-03 -07 HAS BEEN REBUTTED BY THE ASSESSEE. BUT NONE OF THE AUTHORITIES BELOW HAVE CONSIDERED THE SAID EVIDENCE OR SAID CONTENTIONS OF THE ASSESSEE BEFORE PASSING THE RESP ECTIVE ORDER. IN VIEW OF THE SAME, WE DEEM IT FIT AND PRO PER TO REMIT THE ISSUE TO THE FILE OF THE A.O. ONLY FOR TH E LIMITED PURPOSE OF VERIFICATION OF ASSESSEES CONTENTIONS A ND IF IT IS FOUND THAT THE ASSESSEE HAS INVESTED A FURTHER SUM OF RS. 4.00 LAKHS AS ON 31-03-2008, THEN THE VALUE ADOPTED BY THE DVO AND THE VALUE SHOWN BY THE ASSESSEE IS EQUA L AND THERE IS NO DIFFERENCE BETWEEN THE SAME, AND NO ADD ITION IS REQUIRED TO BE MADE ON THIS COUNT. ACCORDINGLY, THE ASSESSEES APPEAL IS TREATED AS ALLOWED FOR STATIST ICAL PURPOSES. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 11 TH JANUARY , 2017. SD/- SD/- (S. RIFAUR RAHMAN) (P. MADHAVI DEVI) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED: 11 TH JANUARY, 2017 KRK 5 ITA NO. 1406/HYD/2015 DR SHOBHA PAWAR, ADILABAD. 1) DR SHOBHA PAWAR, D.NO. 4-3-225, DWARAKA NAGAR, ADILABAD. 2) ITO, WARD -1, ADILABAD. 3) CIT(A) -5, HYDERABAD 4) PCIT-5, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., H YDERABAD. 6) GUARD FILE