Syed Tajamul Hussian, Hyderabad, Hyderabad V. DCIT, Central Circle-4, Hyderabad, Hyderabad

ITA 1596/HYD/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2718 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 29-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N SWAPNA
• Assessee Lawyers: MD AFZAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER I.T.A. NO. 1596/HYD/2016 ASSESSMENT YEAR: 2008-09 SYED TAJAMUL HUSSAIN, HYDERABAD [PAN: ABNPS1892A] VS THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-4, HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI MD. AFZAL, AR FOR REVENUE : SMT. N. SWAPNA, DR DATE OF HEARING : 01-01-2018 DATE OF PRONOUNCEMENT : 05-01-2018 O R D E R PER B. RAMAKOTAIAH, A.M. : THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF TH E COMMISSIONER OF INCOME TAX (APPEALS)-2, HYDERABAD D ATED 30-09-2016. THE ISSUE IN THIS APPEAL IS WITH REFEREN CE TO ADDITION MADE BY THE ASSESSING OFFICER (AO) INVOKING THE PROV ISIONS OF SECTION 153C OF THE INCOME TAX ACT [ACT], CONSEQUENT TO SEARCH IN ANOTHER CASE. 2. ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 2. THE LEARNED COMMISSION OUGHT TO HAVE APPRECIATE D THAT THE ASSESSEE SUBMITTED WRITTEN SUBMISSIONS AND OTHER MATERIAL IN SUPPORT OF THE GROUNDS OF APPEAL FOR THE ASSESSMENT YEAR 2008-09 & 2009-10, BEFORE THE CIT(A)-11, HYDERABAD, BEFORE WHOM THE APPEAL WAS FI LED. I.T.A. NO. 1596/HYD/2016 :- 2 - : 3. THE LEARNED COMMISSIONER OUGHT TO HAVE APPRECIAT ED THAT NO MATERIAL REFERRED IN SECTION 153C, BELONGING TO THE ASSESSEE WAS FOUND IN THE PREMISES OF SRI. SURESH CHAND AGARWAL & OTHERS, THE REFORE, SECTION 153C OF THE IT ACT IS NOT APPLICABLE AND THEREFORE, ORDE R U/S. 143(3) R.W.S 153 IS NULL AND VOID. 4. THE LEARNED COMMISSIONER ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER, WHEREIN, AN ADDITION OF RS.8 LAK HS IS MADE INSPITE OF OFFERING AN EXPLANATION IN RESPECT OF INVESTMENTS M ADE DURING THE PERIOD RELEVANT TO THE SUBJECT ASSESSMENT YEAR. 5. THE LEARNED COMMISSIONER OF INCOME TAX OUGHT TO HAVE APPRECIATED THAT THE ASSESSING OFFICER OF THE SEARCHED PERSON H AS NOT RECORDED A SATISFACTION IN RESPECT OF INCRIMINATING MATERIAL F OUND IF ANY, IN THE PREMISES OF THE SEARCHED PERSON, BELONGING TO THE A SSESSEE. THEREFORE, OUGHT TO HAVE HELD THAT THE ASSESSMENT MADE 143(3) R.W.S 153C IS NULL AND VOID. GROUND NOS. 1 & 6 ARE GENERAL IN NATURE. 3. LD. COUNSEL SUBMITTED THAT ON THE ADDITIONS MADE BY ASSESSEE, INVOKING THE PROVISIONS OF SECTION 153C, AP PEALS WERE FILED FOR AYS. 2008-09 AND 2009-10 BEFORE THE CIT(A) -11, HYDERABAD. SUBSEQUENTLY, THE FILES WERE TRANSFERRED F ROM CIT(A)- 11, BUT UNFORTUNATELY, DISTRIBUTED BETWEEN CIT(A)-2 A ND CIT(A)-3. HE WAS PURSUING THE APPEALS BEFORE THE CIT(A)-3, WHO HAS REMANDED THE MATTER TO AO AND IS STILL PENDING, WHEREAS THE APPEAL BEFORE THE CIT(A)-2 WAS NOT ATTENDED AS THE COUNS EL IS NOT AWARE ABOUT PENDENCY OF APPEAL BEFORE THE CIT(A)-2. IT IS ALSO SUBMITTED THAT NO NOTICE WAS RECEIVED, HENCE, ASSESSEE C OULD NOT REPRESENT OR BRING THIS FACT TO CIT(A)-2 THAT ANOTHER APP EAL IS PENDING BEFORE THE CIT(A)-3. SINCE THE ORDER PASSED BY CIT(A)-2 IS EX-PARTE , IT WAS THE SUBMISSION OF LD. COUNSEL THAT THE IMPUGNE D ORDER MAY BE SETASIDE AND APPEAL MAY BE RESTORED TO T HE FILE OF CIT(A). I.T.A. NO. 1596/HYD/2016 :- 3 - : 4. LD.DR ACCEPTED THE FACTS AND SUBMITTED THAT THE APPEAL IN OTHER YEAR IS STILL PENDING BEFORE THE CIT(A)-3. 5. AS SEEN FROM THE ORDER OF CIT(A)-2, CIT(A) DISMIS SED THE APPEAL FOR NOT RESPONDING TO THE NOTICES AND ON MERITS HE AGREED WITH THE AO. IT WAS STATED THAT WRITTEN SUBMISSIONS WERE SUBMITTED WHICH ARE PENDING IN AY. 2009-10 AND ADDITI ON MADE BY THE AO IS IN A WAY LINKED IN BOTH THE YEARS AND THE MATT ER IS REMANDED TO AO BY THAT CIT(A). KEEPING THE SUBMISSIONS IN MIND, WE ARE OF THE OPINION THAT THE ORDER PASSED BY THE LD.C IT(A)-2 EX- PARTE IS TO BE SET ASIDE AND THE APPEAL IS TO BE RESTORED TO THE FILE OF CIT(A) FOR FRESH CONSIDERATION. THE CIT(A) MAY ALSO EXAMINE WHETHER HE HAS JURISDICTION TO PASS THE ORDER AS ANOTH ER APPEAL IS PENDING BEFORE THE CIT(A)-3 IF NECESSARY TO TAKE NECES SARY STEPS FOR TRANSFER OF THE FILE, OR CONSIDER DISPOSING THE APPEA L, ON MERITS AFTER GIVING DUE OPPORTUNITY TO ASSESSEE FOR MAKING SUBMISS IONS INDEPENDENTLY FOR THIS ASSESSMENT YEAR. GROUNDS ARE CO NSIDERED ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH JANUARY, 2018 SD/- SD/- (P. MADHAVI DEVI) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEM BER HYDERABAD, DATED 5 TH JANUARY, 2018 TNMM I.T.A. NO. 1596/HYD/2016 :- 4 - : COPY TO : 1. SYED TAJAMUL HUSSAIN, C/O. MOHD. AFZAL, ADVOCATE , 11-5-465, SHERSONS RESIDENCY, FLAT NO. 402, CRIMIN AL COURT ROAD, RED HILLS, HYDERABAD. 2. THE INCOME TAX OFFICER, WARD-7(1), HYDERABAD. 3. CIT (APPEALS)-2, HYDERABAD. 4. THE PR.CIT-2, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.