Smt. Manjula D.Shah, Hyderabad V. ITO - Ward 6(3), Hyderabad

ITA 1592/HYD/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1361 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 16-10-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T DIWAKAR PRASAD
• Assessee Lawyers: LAXMINIWAS SHAR MA
• Keywords: Reopening of assessment; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO.1592/HYD/2012 : ASSESSMENT YEAR 2005-06 SMT. MANJULA D. SHAH, HYDERABAD (PAN - AKAPM 4682 Q ) V/S INCOME - TAX OFFICER, WARD 6(3), HYDERABAD) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI LAXMI NIWAS SHARMA RESPONDENT BY : SHRI T.DIWAKAR PRASAD DR DATE OF HEARING 06.02.2013 DATE OF PRONOUNCEMENT 06.02.2013 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE CIT(A) IV, HYDERABAD DATED 31.7.2012 FOR THE AS SESSMENT YEAR 2005- 06. 2. EFFECTIVE GROUNDS OF THE ASSESSEE IN THIS APPEA L READ AS UNDER- 1. THE ORDER OF LEARNED CIT(A)-IV IS ERRED IN THE FACTS AND LAW WHILE PASSING THE APPEAL ORDER. 2. THE LEARNED CIT(A) HAS NOT CONSIDERED THE GENUIN E FACTUAL SITUATION FOR CONDONATION OF DELAY IN FILING THE AP PEAL (6 MONTHS 12 DAYS) 3. THE LEARNED CIT(A) ERRED IN NOT CONSIDERED THAT PASSING THE ASSESSMENT ORDER U/S. 143(3) R.W.S.147 IS INVALID SINCE THE ORDER WAS PASSED U/S. 143(3) DATED 29/12/2009 WAS A FTER CONSIDERING THE INVESTMENT OF CAPITAL GAIN. ITA NO.1592/HYD/12 SMT. MANJULA D. SHAH, HYDERABAD 2 4. THE LEARNED CIT(A) ERRED IN NOT CONSIDERING THE FACT THAT THE FIRST AND SECOND PROPERTY WAS PURCHASED WITHIN THE SPECIFIED PERIOD PERMISSIBLE U/S. 54(1) TO CLAIM EX EMPTION. 5. . 3. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE DID NOT PRESS GROUND NO.2 AS THE CIT(A) HIMSELF DEC IDED THE APPEAL ON MERITS. THAT BEING SO, GROUND NO.2 OF THE ASSESSEE IS REJECTED AS NOT PRESSED. 4. COMING TO THE MERITS OF THE OTHER GROUNDS, GROU ND NO.3 RELATES TO REOPENING OF THE ASSESSMENT. ON GOING THROUGH THE GROUNDS RAISED BY THE ASSESSEE BEFORE THE CIT(A), WE FIND T HAT THE ASSESSEE HAS RAISED SPECIFIC GROUND QUESTIONING THE LEGALITY AND VALIDITY OF THE REOPENING OF ASSESSMENT UNDER S.147 OF THE INCOME- TAX ACT. THE CIT(A), HOWEVER, IN THE IMPUGNED ORDER, WITHOUT AD JUDICATING ON THIS GROUND RELATING TO THE REOPENING OF THE ASSESSMENT, DIRECTLY PROCEEDED TO DECIDE THE ISSUE WITH REGARD TO ALLOWABILITY OF DEDUCTION UNDER S.54 OF THE INCOME-TAX ACT. IN OUR CONSIDERED OPINION, IT IS NOT APPROPRIATE ON THE PART OF THE CIT(A) TO DECIDE THE DEDUCTION UNDE R S.54, WITHOUT DECIDING ON THE LEGAL ISSUE, WHICH GOES TO THE ROOT OF THE MATTER, RAISED BEFORE HIM. IN THIS VIEW OF THE MATTER, WE SET ASI DE THE IMPUGNED ORDER OF THE CIT(A) AND REMIT THE MATTER TO HIS FILE, WIT H A DIRECTION TO DISPOSE OFF THE FIRST APPEAL BEFORE HIM AFRESH, ADJUDICATI NG IN THE FIRST PLACE, THE GROUND RELATING TO LEGAL ISSUE WITH REGARD TO LEGAL ITY AND VALIDITY OF REOPENING OF ASSESSMENT, AND THEN THE MERITS OF THE OTHER ISSUES RAISED IN THE GROUNDS RAISED BEFORE HIM. HE SHALL GIVE R EASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE, AND THEN RE-DECIDE THE APPEAL IN ACCORDANCE WITH LAW, BY PASSING A SPEAKING ORDER. ITA NO.1592/HYD/12 SMT. MANJULA D. SHAH, HYDERABAD 3 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 06.02.2013 SD/ - (SAKTIJIT DEY) SD/ - (CHANDRA POOJARI) JUDICIAL MEMBER. ACCOUNTANT MEMBER. DT/- 06TH FEBRUARY, 2013 COPY FORWARDED TO: 1. SMT. MANJULA D. SHAH, FLAT NO.1A, FALCOM CREST, ROA D NO10, BANJARA HILLS, HYDERABAD 2. INCOME - TAX OFFICER WARD 6 ( 3 ), HYDERABAD 3. 4. COMMISSIONER OF INCOME - TAX(APPEALS) IV HYDERABAD COMMISSIONER OF INCOME - TAX III, HYDERABAD 5. THE DEPARTMENTAL REPRESENTATIVE, ITAT HYDERABAD B.V.S.