C.Bhoopal Reddy, Hyderabad V. ITO, Hyderabad

ITA 1633/HYD/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9943 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2000-2001
• Appeal Filed On: 20-12-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K E SUNIL BABU
• Keywords: Reopening of assessment; Opportunity of being heard; Set aside
• Section: 44AD; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH SMC', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER I.T.A. NO. 1633/HYD/2010 (ASSESSMENT YEAR 2000-01) I.T.A. NO. 1634/HYD/2010 (ASSESSMENT YEAR 2001-02) I.T.A. NO. 1635/HYD/2010 (ASSESSMENT YEAR 2002-03) I.T.A. NO. 1636/HYD/2010 (ASSESSMENT YEAR 2003-04) I.T.A. NO. 1637/HYD/2010 (ASSESSMENT YEAR 2004-05) SHRI C. BHOOPAL REDDY HYDERABAD PAN: AAJPC7224M VS. INCOME-TAX OFFICER WARD 6(3), HYDERABAD APPELLANT RESPONDENT APPELLANT BY: NONE RESPONDENT BY: SHRI K.E. SUNIL BABU O R D E R ALL THE ABOVE FIVE APPEALS OF THE ASSESSEE ARE DIRECTED AGAINST FIVE INDEPENDENT ORDERS OF CIT(A)- IV, HYDERABAD DATED 30.09.2010. SINCE COMMON ISSUES AR ISE FOR CONSIDERATION IN ALL THE ABOVE APPEALS I HEARD THESE APPEALS TOGETHER AND DISPOSING OF THE SAME BY THIS COMMON ORDER. I.T.A. NOS. 1633-1637/HYD/ 2010 SHRI C. BHOOPAL REDDY ========================= 2 2. NONE APPEARED FOR THE ASSESSEE. THE APPEALS HAV E BEEN TAKEN UP TO DECIDE THE ISSUES AFTER HEARING TH E LEARNED DR. 3. THE FIRST GROUND IN THESE APPEALS IS WITH REGARD TO REOPENING OF ASSESSMENT. AT THE OUTSET WE MAKE IT CLEAR THAT THOUGH THE ASSESSEE RAISED THE GROUND WITH REG ARD TO REOPENING OF ASSESSMENT IN ALL THESE YEARS, THE ASSESSMENT FOR A.Y. 2004-05 IS THE ORIGINAL ASSESSM ENT AND IS NOT REOPENED ASSESSMENT U/S. 147 OF THE INCO ME- TAX ACT, 1961. THEREFORE, THE GROUND IN I.T.A. NO. 1637/HYD/2010 FOR A.Y. 2004-05 WITH REGARD TO REOPENING OF ASSESSMENT BECOMES INFRUCTUOUS AND THE SAME IS DISMISSED BEING INFRUCTUOUS. 4. THE GROUND IN OTHER APPEALS WITH REGARD TO REOPENING ASSESSMENT CANNOT SURVIVE SINCE THE ASSES SEE HIMSELF HAS NOT PRESSED THIS ISSUE BEFORE THE CIT(A ). HENCE THE ASSESSEE CANNOT HAVE ANY GRIEVANCE. ACCORDINGLY THIS GROUND WITH REGARD TO REOPENING OF ASSESSMENT IN ALL THE FOUR APPEALS IS DISMISSED. 5. THE NEXT GROUND COMMON IN ALL THESE APPEALS IS WITH REGARD TO ESTIMATION OF INCOME OF THE ASSESSEE AT 8% ON THE BASIS OF TOTAL CREDIT INTO THE BANK ACCOUNT. BRIEF FACTS OF THE ISSUE ARE THAT THE ASSESSEE DECLARED T OTAL SALES I.T.A. NOS. 1633-1637/HYD/ 2010 SHRI C. BHOOPAL REDDY ========================= 3 TURNOVER IN ITS RETURNS OF INCOME FOR THE ASSESSMEN T YEARS UNDER CONSIDERATION AS FOLLOWS: SR. NO. A.Y. AMOUNT DECLARED BY THE ASSESSEE AS TURNOVER RS.) AMOUNT COMPUTED BY THE ASSESSING OFFICER AS TURNOVER (RS.) 1. 2000-01 14,94,543 19,12,485 2. 2001-02 5,12,200 12,34,813 3. 2002-03 13,86,450 13,86,450 4. 2003-04 13,86,450 15,64,200 5. 2004-05 10,38,400 15,64,200 6. BEFORE THE LOWER AUTHORITIES THE ASSESSEE WAS NO T ABLE TO EXPLAIN THE DEPOSITS MADE INTO THE BANK ACC OUNT. HOWEVER, THE ASSESSEE HAS TAKEN A PLEA THAT CERTAIN DEPOSITS WHICH WERE RE-DEPOSITED INTO THE BANK ACCO UNT DO NOT ACTUALLY REPRESENT THE TURNOVER OF THE ASSES SEE. SIMILARLY THE ASSESSEE HAS TAKEN A PLEA THAT THE HE HAS AGRICULTURAL INCOME AND THE SAME WAS DEPOSITED INTO THE BANK ACCOUNT AND IT CANNOT BE CONSIDERED AS TURNOVE R FOR THE PURPOSE OF COMPUTING INCOME OF THE ASSESSEE. HOWEVER, THE LOWER AUTHORITIES DID NOT AGREE WITH T HE CONTENTION OF THE ASSESSEE SINCE THE ASSESSEE WAS N OT ABLE TO LEAD FURTHER EVIDENCE IN SUPPORT OF HIS CONTENTI ON. 7. IN MY OPINION, IT IS FAIR TO GIVE ONE MORE CHANC E TO THE ASSESSEE TO EXPLAIN THE SOURCE OF DEPOSITS MADE INTO THE BANK ACCOUNT. IF THE ASSESSEE EXPLAINS THE SOU RCE OF CREDIT INTO THE BANK ACCOUNT THEN THE ASSESSING OFF ICER IS I.T.A. NOS. 1633-1637/HYD/ 2010 SHRI C. BHOOPAL REDDY ========================= 4 DIRECTED TO CONSIDER THE TURNOVER DECLARED BY THE A SSESSEE AND ESTIMATE THE INCOME OF THE ASSESSEE AT 8% OF TH E TURNOVER IN VIEW OF THE PROVISIONS OF SECTION 44AD OF THE ACT. IF THE ASSESSEE IS UNABLE TO EXPLAIN THE DEPO SITS MADE INTO THE BANK ACCOUNT SATISFACTORILY THEN ONLY THAT PART OF THE AMOUNT WHICH HE COULD NOT EXPLAIN PROPE RLY HAS TO BE CONSIDERED AS ADDITIONAL TURNOVER OVER AN D ABOVE THE TURNOVER DECLARED BY THE ASSESSEE AND IT IS ALSO TO BE CONSIDERED FOR DETERMINATION OF THE INCOME AT 8% OF THE TURNOVER BY THE ASSESSING OFFICER. ACCORDINGLY I SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES ON THIS I SSUE AND THE ISSUE IS REMANDED BACK TO THE FILE OF THE ASSES SING OFFICER AND THE ASSESSING OFFICER SHALL DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER GIVING A REASON ABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24TH JANUARY, 2011. SD/- (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED 24TH JANUARY, 2011 TPRAO I.T.A. NOS. 1633-1637/HYD/ 2010 SHRI C. BHOOPAL REDDY ========================= 5 COPY FORWARDED TO: 1. SHRI C. BHOOPAL REDDY, C/O. SHRI S. RAMA RAO, AD VOCATE, FLAT NO. 102, SHRIYA'S ELEGANCE, 3-6-643, ST. NO. 9 , HIMAYATNAGAR, HYDERABAD-29. 2. THE INCOME-TAX OFFICER, WARD 6(3), HYDERABAD. 3. CIT(A)-IV, HYDERABAD. 4. THE CIT-III, HYDERABAD 5. THE DR, ITAT, HYDERABAD