G.Narayana Rao, Kakinada V. THE DCIT, Vijayawada

ITA 150/VIZ/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 6519 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 29-04-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T S N MURTHY
• Keywords: Search and seizure; Revised return
• Section: 80C; 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM SMC BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO, HON'BLE JUDICIAL MEMBER ITA NO. 1 5 0 / VIZ /201 5 (ASST. YEAR : 20 09 - 1 0 ) G. NARAYANA RAO, PROP. SRI DHANA LAKSHMI OIL & GENERAL MERCHANTS, D.NO. 27 - 9 - 14/1, PULAVARTHIVARI STREET, KAKINADA. VS. D CIT, CENTRAL CIRCLE, VIJAYAWADA. PAN NO. ABQPG 1242 D (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G.V.N. HARI ADV OCATE . DEPARTMENT BY : SHRI T.S.N. MURTHY CIT DR DATE OF HEARING : 1 5 / 1 1 /201 7 . DATE OF PRONOUNCEMENT : 22 / 1 1 /201 7 . O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 3, VISAKHAPATNAM , DATED 31 /0 3/2015 FOR THE ASSESSMENT YEAR 2009 - 10 . 2. FACTS ARE IN BRIEF THAT THE ASSESSEE IS AN INDIVIDUAL , DERIVING INCOME FROM INTEREST FROM PROPERTY, REMUNERATION AND INTEREST FROM PARTNERSHIP AND INCOME FROM OIL BUSINESS. A SEARCH AND SEIZURE O PERATION WAS CONDUCTED IN THE ASSESSEE S CASE ON 03/02/2009 . CONSEQUENT TO THE SEARCH, ASSESSEE HAS FILED A RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 22,27,610/ - , AFTER 2 ITA NO. 150 / VIZ /201 5 (G. NARAYANA RAO) CLAIMING DEDUCTION UNDER SECTION 80C OF THE ACT OF RS. 1 LAKH. THE ASSESSEE HAS ADMITTED ADDITIONAL INCOME OF RS. 26,14,482/ - AND OFFERED UNDER SECTION 132(4) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'ACT') DURING THE COURS E OF SEARCH. HOWEVER, THE ASSESSEE FILED A REVISED RETURN ON 31/03/2010 ADMITTING AN INCOME OF RS. 24,34,430/ - . THE RETURN WAS CONVERTED TO SCRUTINY BY ISSUING A NOTICE UNDER SECTION 143(2) DATED 08/04/2010 AND AFTER FOLLOWING DUE PROCEDURE, ASSESSMENT IS COMPLETED , ASSESSED INCOME OF RS. 27,12,792/ - . ACCORDINGLY, THE ASSESSING OFFICER HAS MADE ADDITION OF RS. 2,78,362/ - B ASED ON THE INCRIMINATING MATERIAL FOUND DURING THE COUR S E OF SEARCH, WHICH THE ASSESSEE HAS ORIGINALLY ACCEPTED. 3. ON BEING AGGRIEVED, ASSESSEE CARRIED T HE MATTER IN AP P EAL BEFORE THE LD. CIT(A). THE LD. CIT(A) DI S MISSED THE APPEAL FILED BY THE ASSESSEE BY OBSERVING THAT THE IMPUGNED ASSESSMENT WAS MADE UNDER SECTION 143(3) ON 30/12/2010 . S UBSEQUENTLY , ASSESSING OFFICER ISSUED A NOTICE UNDER SECTION 148 AND COMPLETED ASSESSMENT UNDER SECTION 143 READ WITH SECTION 147 DATED 18/03/2007 THEREBY , ASSESSING OFFICER ASSESSED THE INCOME AT RS. 26,97,160/ - AND , THEREFORE, THERE CANNOT BE TWO ASSESSMENT ORDERS IN EXISTENCE AT THE SAME TIME ON THE SAME ASSESSEE FOR THE SAME ASSESSMENT YEAR. IT IS ALSO SEEN THAT THE APPELLANT HAD 3 ITA NO. 150 / VIZ /201 5 (G. NARAYANA RAO) ACCEPTED THE ASSESSMENT MADE UNDER SECTION 143(3) READ WITH SECTION 147 AS NO APPEAL IS FILED AGAINST THIS REASSESSMENT ORDER. THUS, AS ON DATE, THE REASSESSMENT ORDER UNDER SECTION 143(3) READ WITH SECTION 147 IS SUBSEQUENT IN TIME AND HAS ATTAINED FINALITY. THE PRESENT APPEAL FILED AGAINST EARLIER ORDER UNDER SECTION 143(3) HAS BECOME INFRUCTUOUS AS THAT ASSESSMENT ITSELF IS NOW SUPERSEDED . 4 . ON BEING AGGRIEVED, ASSESSEE CARRIED MATTER IN APPEAL BEFORE THE TRIBUNAL. 5 . LD . COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THERE IS A SEARCH CONDUCTED IN THE ASSESSEES CASE AND ASSESSMENT WAS PASSED UNDER SECTION 143(3) DATED 30/12/2010 AND THE ASSES SING OFFICER MADE AN ADDITION OF RS. 2,78,362/ - . S UBSEQUENTLY , THE ASSESSING OFFICER HAS ISSUED A NOTICE UNDER SECTION 148 AND PASSED ANOTHER ORDER, BOTH ARE DIFFERENT , T HEREFORE, LD. CIT(A) IS NOT CORRECT IN DISMISSING THE APPEAL FILED BY THE ASSESSEE. 6 . ON THE OTHER HAND , LD . DEPARTMENTAL REPRESENTATIVE SIMPLY RELIED ON THE ORDER OF THE ASSESSING OFFICER. 7 . I HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND ORDERS OF THE AUTHORITIES BELOW. 8 . IN THIS CASE, THERE IS A SEARCH, SUBSEQUENTLY ASSESSEE FILED A RETURN OF INCOME AND ASSESSMENT IS COM P LETED UNDER SECTION 4 ITA NO. 150 / VIZ /201 5 (G. NARAYANA RAO) 143(3) OF THE ACT B Y M A KING ADDITION OF RS. 2,78,362/ - . THE ASSESSEE HAS CHALLENGED THIS ORDER IN APPEAL BEFORE THE LD. CIT(A). SUBS EQUENTLY , THE ASSESSING OFFICER HAS ISSUED A NOTICE UNDER SECTION 148 AND ASSESSMENT IS COM P LETED UNDER SECTION 143(3) READ WITH SECTION 147 ON 18/06/2014. ACCORDING TO THE LD. CIT(A), THE ASSESSING OFFICER SUBSEQUENT TO THE PASSING OF ASSESSMENT ORDER UN DER SECTION 143(3) , PASSED ANOTHER ASSESSMENT ORDER UNDER SECTION 143(3) READ WITH SECTION 147 DATED 18/06/2014 . THEREFORE, THE FIRST ORDER PASSED BY THE ASSESSING OFFICER IS MERGE D WITH THE SECOND ORDER AND THE APPEAL FIL E D BY THE ASSESSEE BY CHALLENGING THE ADDITION MADE IN THE ORIGINAL ASSESSMENT ORDER IS INFRUCTUOUS. I FIND THAT THE FIRST ASSESSMENT ORDER IS MADE UNDER SECTION 143(3) ON 30/12/2010, WHICH IS INDEPENDENT ASSESSMENT ORDER AND T HE ASSESSING OFFICER AFTER EXAMINING THE DETAILS ADDITION IS MADE. AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL WHICH IS IMPUGNED BEFORE THE TRIBUNAL . 9 . SUBSEQUENTLY , THE ASSESSING OFFICER IS OF THE OPINION THAT THERE IS AN ESCAPEMENT OF INCOME, HENCE, ISSUED A NOTICE UNDER SECTION 148 AND ASSESSMENT IS COMPLE TED UNDER SECTION 143(3) READ WITH SECTION 147 ON 18/06/21010. THIS IS AN ASSESSMENT , PASSED FOR THE ESCAPEMENT OF INCOME. I FIND THAT BOTH THE 5 ITA NO. 150 / VIZ /201 5 (G. NARAYANA RAO) ASSESSMENT ORDERS ARE DIFFERENT. THE ADDITION MADE IN THE ASSESSMENT ORDER DATED 30/12/2010 CANNOT BE SAID, T HAT IS MERGED WITH THE ASSESSMENT ORDER PASSED ON 08/06/2010. IN VIEW OF THE ABOVE, THE ORDER PASSED BY THE LD. CIT(A) IS SET ASIDE AND I DIRECT THE LD. CIT(A) TO ADJUDICATE THE APPEAL FILED BY THE ASSESSEE ON MERITS. THEREFORE, THIS APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 10 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE . ORDER PRONOUNCED IN OPEN COURT ON THIS 22 ND DAY OF NOV . , 201 7 . SD/ - (V. DURGA RAO) JUDICIAL MEMBER DATED : 22 ND NOVEMBER , 201 7 . VR/ - COPY TO: 1. THE ASSESSEE - G. NARAYANA RAO, PROP. SRI DHANA LAKSHMI OIL & GENERAL MERCHANTS, D.NO. 27 - 9 - 14/1, PULAVARTHIVARI STREET, KAKINADA. 2. THE REVENUE DCIT, CENTRAL CIRCLE, VIJAYAWADA. 3. THE P CIT (CENTRAL), HYDERABAD. 4. THE CIT(A) - 3, VISAKHAPATNAM. 5. THE D.R. , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.