Sai Real Estates, R.R.Dist., R.R.Dist V. ITO, Ward-8(2), Hyderabad, Hyderabad

ITA 1513/HYD/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6187 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 09-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A SITARAMA RAO
• Section: 69; 148

Judgement Text

ITA NO 1513 OF 2016 SAI REAL ESTATES RR DISTT PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S.RIFAUR RAHMAN, ACCOUNTANT MEMBER ITA NO.1513/HYD/2016 (ASSESSMENT YEAR: 2007-08) M/S. SAI REAL ESTATE RALLAGUDA, SHAMSHABAD RR DISTT PAN: ABGFS 7390 N VS INCOME TAX OFFICER WARD-8 (2) HYDERABAD FOR ASSESSEE : SHRI K.C. DEVDAS FOR REVENUE: SHRI A. SITARAMA RAO, DR O R D E R PER SMT. P. MADHAVI DEVI, J.M. THIS IS ASSESSEES APPEAL FOR THE A.Y 2007-08. IN T HIS APPEAL, THE ASSESSEE IS AGGRIEVED BY THE ORDER OF T HE CIT (A)-2 HYDERABAD DATED 28.06.2016 CONFIRMING THE ADDITIONS MADE BY THE AO IN THE ASSESSMENT ORDER DATED 29.12.2010. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: 1 . THE ORDER OF THE CIT (A)-2 HYDERABAD IN UPHOLDING THE ADDITION OF RS.2,03,33,740/- TOWARDS UNDISCLOSED INVESTMENT IS TOTALLY CONTRARY TO THE FACTS AND EVIDENCE ON RECORD. 2. THE LEARNED CIT (A) ERRED IN CONFIRMING THE ADDITION WITHOUT TAKING INTO ACCOUNT THE WRITTEN SUBMISSIONS MADE BY THE APPELLANT THAT THE ADDITION IS TOTALLY UNWARRANTED AND MUST BE DELETED. DATE OF HEARING : 30.01.2017 DATE OF PRONOUNCEMENT : 08.02.2017 ITA NO 1513 OF 2016 SAI REAL ESTATES RR DISTT PAGE 2 OF 4 2. AT THE OUTSET, IT IS NOTICED THAT THERE IS A DEL AY OF ONE DAY IN FILING OF THE APPEAL AND THE ASSESSEE HAS FI LED AN APPLICATION DATED 30.01.2017 ALONG WITH AN AFFIDAVI T EXPLAINING THE REASONS FOR THE DELAY AND SEEKING CONDONATION O F THE SAME. IT IS STATED THEREIN THAT THE DELAY HAS OCCURRED DUE T O THE INABILITY OF THE ASSESSEE TO OBTAIN THE PAID CHALLANS FROM THE B ANK FOR PAYMENT OF APPEAL FEES BY 8.11.2016 AND THEREFORE, THE APPEAL WAS FILED ON 9.11.2016. BEING SATISFIED WITH THE AB OVE EXPLANATIONS, WE ARE INCLINED TO CONDONE THE DELAY AND ADMIT THE APPEAL FOR ADJUDICATION. 3. BRIEF FACTS RELATING TO THE CASE BEFORE US, ARE THAT THERE WAS A SURVEY ON 1.9.2016 SUBSEQUENT TO WHICH, THE A O NOTICED THAT THE ASSESSEE HAS NOT FILED ITS RETURN OF INCOM E FOR THE A.Y 2007-08. THEREFORE, A NOTICE U/S 148 WAS ISSUED ON 20.10.2009. IN REPLY TO THE SAME, THE ASSESSEE FILED AN AFFIDAV IT STATING THAT THE ASSESSEE FIRM HAD FILED THE RETURN OF INCOME WI TH NIL INCOME AND ALSO STATED THAT NO TRANSACTIONS WERE ENTERED I NTO MADE IN THE FINANCIAL YEAR 2006-07. AO OBSERVED THAT THE AS SESSEE HAS FILED THE FRINGE BENEFIT TAX (FBT) RETURN, BUT NOT T HE INCOME TAX RETURN. THEREFORE, THE AO INITIATED SCRUTINY ASSESS MENT BY ISSUING NOTICES U/S 142(1), 143(2) & 142(2) TO THE ASSESSEE ASKING THE ASSESSEE TO EXPLAIN THE SOURCES FOR VARIOUS INV ESTMENTS MADE BY IT. THE ASSESSEES HUSBAND AND HIS REPRESENTATIV E APPEARED ON 16.08.2010 BUT FAILED TO APPEAR THEREAFTER. DUE TO THE ASSESSEES FAILURE TO APPEAR, THE AO MADE THE ADDITION OF RS.2 ,03,33,740 U/S 69 OF THE I.T. ACT AND BROUGHT IT TO TAX. AGGRIEVED , THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT (A) ALONG WITH T HE WRITTEN SUBMISSION. THE CIT (A) OBSERVED THAT THE ASSESSEE DID NOT APPEAR ITA NO 1513 OF 2016 SAI REAL ESTATES RR DISTT PAGE 3 OF 4 BEFORE HIM TO EXPLAIN ITS CASE ALONG WITH ANY EVIDE NCE REBUTTING THE CONCLUSIONS DRAWN BY THE AO. HE, THEREFORE, CON FIRMED THE ORDER OF THE AO AND THE ASSESSEE IS IN 2 ND APPEAL BEFORE US. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE HAD FILED WRITTEN SUBMISSIONS BEFORE T HE AO AS WELL AS THE CIT (A) STATING THAT THE ASSESSEE HAS NOT CA RRIED ON ANY BUSINESS OPERATIONS DURING THE RELEVANT YEAR AND AL SO THAT THERE WERE MANY OTHER OFFICES LOCATED IN THE SAME PREMISE S, AND THE CUSTOMERS AND PARTIES OF THOSE OFFICES ALSO USUALLY REALLY VISITED THE SAME AND DIFFERENT TRANSACTIONS OF DIFFERENT BU SINESSES WERE CARRIED ON. IT IS ALSO SUBMITTED THAT THE ASSESSEE HAD STATED THAT THE SURVEY WAS CONDUCTED IN THE HANDS OF SHRI SAMA VENKATA REDDY BUT THERE WAS NO SURVEY CARRIED OUT IN THE HA NDS OF THE ASSESSEE FIRM AND THEREFORE, THE PRESUMPTIONS MADE BY THE AO THAT THE ALLEGED MATERIAL BELONGS TO THE ASSESSEE F IRM IS WITHOUT ANY BASIS AND FACTUALLY INCORRECT. HE SUBMITTED TH AT NEITHER OF THE OFFICERS BELOW HAVE APPRECIATED THE ASSESSEES CONTENTIONS AND HAVE DECIDED THE CASE EX-PARTE QUA THE ASSESSEE . THE LEARNED COUNSEL FOR THE ASSESSEE THEREFORE, PRAYED THAT THE ISSUE MAY BE REMITTED TO THE FILE OF THE AO FOR RECONSIDERATION IN ACCORDANCE WITH THE LAW. 5. THE LEARNED DR ALSO WAS HEARD. 6. TAKING INTO CONSIDERATION OF THE FACTS THAT THE SURVEY WAS NOT CONDUCTED IN THE CASE OF THE ASSESSEE FIRM, BUT WAS CONDUCTED IN THE HANDS OF ONE OF THE PARTNERS SHRI SAMA VENKATA REDDY WHO IS ALSO THE HUSBAND OF THE ASSESSEE AND A LSO THAT THE ITA NO 1513 OF 2016 SAI REAL ESTATES RR DISTT PAGE 4 OF 4 ASSESSMENTS AS WELL AS THE PROCEEDINGS BEFORE THE C IT (A) WERE EX- PARTE, WE DEEM IT FIT AND PROPER TO REMIT THE ISSUE TO THE FILE OF THE AO FOR DE NOVO ASSESSMENT AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF HEARING. THE ASSESSEE SHALL ALSO COO PERATE WITH THE ASSESSING AUTHORITY FOR AN EARLY COMPLETION OF THE ASSESSMENT. 7. IN THE RESULT, ASSESSEES APPEAL IS TREATED AS A LLOWED FOR STATISTICALLY PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH OF FEBRUARY, 2017. SD/- SD/- (S.RIFAUR RAHMAN) ACCOUNTANT MEMBER (P. MADHAVI DEVI) JUDICIAL MEMBER HYDERABAD, DATED 8 TH FEBRUARY, 2017. VINODAN/SPS COPY TO: 1 M/S. SAI REAL ESTATES, D.NO.10-21 NAGARJUNA COMPL EX, RALLAGUDA, SHAMSHABAD MANDAL, RR. DISTT. 2 INCOME TAX OFFICER WARD 8(2) HYDERABAD 3 CIT (A)-2 HYDERABAD 4 PR. CIT 2, HYDERABAD 5 THE DR, ITAT HYDERABAD 6 GUARD FILE BY ORDER