Gaddam Veena , Hyderabad V. Income Tax Officer, Ward-6(3), Hyderabad

ITA 153/Hyd/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3210 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-06-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 09-06-2021
• Assessment Year: 2006-2007
• Appeal Filed On: 05-02-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: BHASKAR REDDY
• Assessee Lawyers: P MURALI MOHAN RAO
• Keywords: Unexplained investment; Opportunity of being heard; Additional evidence; Cost of acquisition; Capital Gains
• Section: 271(1)(c); 147; 148; 144; 69

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.153/HYD/2019 ASSESSMENT YEAR: 20 06 - 07 GADDAM VEENA, HYDERABAD. PAN: AGUPG 9643 B VS. INCOME TAX OFFICER, WARD - 6(3), HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI P. MURALI MOHAN RAO REVENUE BY: SHRI BHASKAR REDDY DATE OF HEARING: 09/06/2021 DATE OF PRONOUNCEMENT: 16 /06/2021 ORDER PER A. MOHAN ALANKAMONY, AM.: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT (A) - 12 , HYDERABAD IN APPEAL NO. 10373/2017 - 18, DATED 19/12/2018 PASSED U/S. 144 R.W.S 147 AND U/S. 250(6) OF THE ACT FOR THE AY 2006 - 07. 2. THE ASSESSEE HAS RAISED NINE GROUNDS IN HER APPEAL AND THEY ARE EXTRACTED HEREIN BELOW FOR REFERENCE: - 1. THE LD. CIT (A) ERRED IN UPHOLDING THE A CTIONS OF THE AO IN INITIATING PROCEEDINGS U/S. 147 OF THE ACT AND IN ISSUANCE OF NOTICE U/S. 148 OF THE ACT WITHOUT THERE BEING ANY BONAFIDE REASONS TO THE SATISFACTION OF THE AO AS TO THE ESCAPEMENT OF INCOME. 2. THE LD. CIT (A) OUGHT TO HAVE HELD THAT T HE AO ERRED IN REOPENING THE ASSESSMENT U/S. 147 OF THE ACT WITHOUT PROPERLY APPRECIATING 2 THE FACT THAT THE ASSESSMENT WAS ALREADY COMPLETED FOR THE AY 2006 - 07. 3. THE LD. CIT (A) OUGHT TO HAVE APPRECIATED AND HELD THAT THE AO ERRED IN NOT FOLLOWING THE JU DGMENT OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. M/S. KELVINATOR INDIA LIMITED [2010] 187 TAXMANN 312 (SC). 4. THE LD. CIT HAS ERRED IN UPHOLDING THE DISALLOWANCE MADE BY AO FOR A SUM OF RS. 57,00,000/ - TOWARDS COST OF ACQUISITION OF LAND AND 1,20,00,000/ - TOWARDS COST OF CONSTRUCTION OF BUILDING, WITHOUT PROPERLY APPRECIATING THE EXPLANATIONS SUBMITTED BY THE APPELLANT. 5. THE LD. CIT OUGHT TO HAVE RIGHTFULLY HELD THAT AO ERRED IN MAKING ADDITION OF RS. 1,77,00,000/ - U/S. 69 OF THE ACT TOWARDS UNEXPLAINED INVESTMENT IN PURCHASE OF PROPERTY. 6. THE LD. CIT OUGHT TO HAVE APPRECIATED THE FACT THAT CAPITAL GAINS ON THE SAME PROPERTY WERE ALREADY ALLOWED BY THE AO DURING THE ASSESSMENT PROCEEDINGS TAKEN UP EARLIER. 7. THE LD. CIT OUGHT TO HAVE APPRE CIATED THAT THE ISSUE OF INVESTMENT IN THE PROPERTY AND CAPITAL GAINS ON THE SAME WERE ALREADY VERIFIED IN DETAIL EARLIER AND CANNOT BE TREATED AS EXPLAINED IN THE REOPENED ASSESSMENT ORDER. 8. THE LD. CIT OUGHT TO HAVE APPRECIATED THAT AO ERRED IN INITIAT ING PENALTY PROCEEDINGS U/S 271(1)(C) WHICH IS NOT CORRECT AND NOT JUSTIFIED. 9. THE APPELLANT MAY ADD OR ALTER OR AMEND OR MODIFY OR SUBSTITUTE OR DELETE AND / OR RESCIND ALL OR ANY OF THE GROUNDS OF APPEAL AT ANY TIME BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 3. AT THE OUTSET, THE LD. AR SUBMITTED BEFORE US THAT THE LD. A.O. HAD PASSED EX - PARTE ORDER U/S. 144 R.W.S 147 OF THE ACT AND THE ASSESSEE WAS NOT AFFORDED PROPER OPPORTUNITY OF BEING HEARD. ON APPEAL, THE LD. CIT(A) HAS ALSO DISMISSED THE A PPEAL WITHOUT CONSIDERING THE SUBMISSIONS OF THE ASSESSEE. IT WAS THEREFORE PLEADED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE LD A.O. IN ORDER TO PROVIDE ONE MORE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD . LD. DR, ON THE OTHER HAND, VEHEMENT LY OPPOSED TO THE SUBMISSIONS OF THE LD. AR AND ARGUED THAT SUFFICIENT OPPORTUNITIES HAD BEEN PROVIDED TO THE ASSESSEE HOWEVER, 3 ON THE GIVEN DATES OF HEARING, NEITHER THE ASSESSEE NOR HIS REPRESENTATIVE APPEARED BEFORE THE LD. A.O. EVEN BEFORE THE LD. CIT( A), THE ASSESSEE COULD NOT SUBSTANTIATE THE ADDITIONAL EVIDENCE IN SUPPORT OF HER CLAIM . THEREFORE THE LD. REVENUE AUTHORITIES HAD NO OTHER OPTION BUT TO PASS ORDERS BASED ON THE MATERIALS AVAILABLE ON RECORD. HENCE, IT WAS PLEADED THAT THE ORDERS PASSED BY THE LD. REVENUE AUTHORITIES DO NOT CALL FOR ANY INTERFERENCE. 4 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE MATERIALS ON RECORD. ON EXAMINING THE FACTS OF THE CASE, WE FIND MERIT IN THE SUBMISSIONS OF THE LD. DR. THE LD. A.O. HAD POSTED THE CASE ON SEVERAL OCCASIONS. HOWEVER, NONE APPEARED ON BEHAL F OF THE ASSESSEE BEFORE THE LD.AO. BEFORE THE LD. CIT(A), THOUGH PROPER OPPORTUNITIES WERE PROVIDED TO THE ASSESSEE , SHE COULD NOT SUBSTANTIATE THE ADDITIONAL EVIDENCE FILED AGAINST THE ADDITION MADE U/S. 69 OF THE ACT. THEREFORE, THE LD. REVENUE AUTHORI TIES WERE LEFT WITH NO OTHER OPTION EXCEPT TO ADJUDICATE THE APPEAL BASED ON THE MATERIAL AVAILABLE ON RECORD. IN THIS SITUATION, WE DO NOT FIND MUCH STRENGTH IN THE ARGUMENTS ADVANCED BY THE LD. AR. HOWEVER , CONSIDERING THE ISSUES INVOLVED IN THE APPEAL AS WELL AS THE PRAYER OF THE LD. AR, IN THE INTEREST OF JUSTICE, WE HEREBY REMIT THE MATTER BACK TO THE FILE OF LD. A.O. IN ORDER TO CONSIDER THE APPEAL AFRESH ON MERITS BY PROVIDING ONE MORE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. AT THE SAME BREATH, WE ALSO HEREBY CAUTION THE ASSESSEE TO PROMPTLY CO - OPERATE BEFORE THE LD. REVENUE AUTHORITIES 4 IN THEIR PROCEEDINGS FAILING WHICH THE LD. REVENUE AUTHORITIES SHALL BE AT LIBERTY TO PASS APPROPRIATE ORDER IN ACCORDANCE WITH LAW AND MERITS BASED ON THE MATERI ALS ON THE RECORD. IT IS ORDERED ACCORDINGLY. 5 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED HEREINABOVE. PRONOUNCED IN THE OPEN COURT ON THE 16 TH JUNE, 2021. SD/ - SD/ - (P. MADHAVI DEVI) ( A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED: 16 TH JUNE , 2021 OKK COPY TO: - 1) GADDAM VEENA C/O. P. MURALI & CO., CHARTERED ACCOUNTANTS, 6 - 3 - 655/2/3, SOMAJIGUDA, HYDERABAD 500 082. 2) INCOME TAX OFFICER, WARD - 6(3), HYDERABAD. 3) THE CIT (A) - 12, HYDERABAD. 4) THE PR. CIT (CENTRAL), HYDERABAD. 5) THE DR, ITAT, HYDERABAD 6) GUARD FILE