B. Jayawani Reddy, Hyderabad V. ACIT, Central Circle - 3, Hyderabad

ITA 1684/HYD/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3221 (ITAT-HYDERABAD)
• Duration Of Justice: 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 29-12-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B V PRASAD REDDY
• Assessee Lawyers: A V RAGHURAM

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B , HYDERABAD BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ITA NO.1684/HYD/2010 : ASSESSMENT YEAR 2002-03 SMT. B.JAYAWANI REDDY, HYDERABAD. (PAN AABPE 2113 R ) VS ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE=3 HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.V.RAGHURAM RESPONDENT BY : SHRI B.V.PRASAD REDDY O R D E R PER G.C.GUPTA, VICE PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YE AR 2002-03 IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER O F INCOME-TAX (APPEALS). 2. GROUNDS OF APPEAL OF THE ASSESSEE ARE AS UNDER- (1) THE ORDER OF THE CIT(A) IS ERRONEOUS BOTH ON F ACTS AND IN LAW IN SO FAR AS IT IS PREJUDICIAL TO THE AS SESSEE. (2) THE LEARNED CIT(A) ERRED IN CONFIRMING THE ORD ER OF THE ASSESSING OFFICER U/S. 153-A HOLDING THAT THERE IS REFERENCE TO SEIZED MATERIAL AND CAPITAL GAINS IS N OT ADMITTED BY THE ASSESSEE WHICH IS CONTRARY TO FACTS . (3) THE LEARNED CIT(A) FAILED TO APPRECIATE THE FAC T THAT THERE WAS NO WARRANT OF SEARCH IN THE NAME OF THE ASSESSEE AND THAT THE ASSESSEE IN FACT HAS FILED RETURN OF INCOME ADMITTING THE TRANSACTION BEFORE T HE DATE OF SEARCH AND THEREFORE THERE IS NO REASON FOR INVOKING PROVISIONS OF SEC.153-C ALSO AND THEREBY ERRED IN UPHOLDING THE ACTION U/S. 153-A. ITA NO.1674/H/2010 SMT. B.JAYAWANI REDDY, HYDERABAD. 2 (4) THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF COMMISSION PAID WITHOUT APPRECIATING THE FACT THAT THE PAYMENTS WERE MADE THROUGH CHEQUE AND THAT FULL ADDRESSES ARE PROVIDED . 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE WAS NO WARRANT OF SEARCH IN THE NAME OF THE ASSESSE E AND THEREFORE, THE WHOLE ASSESSMENT PROCEEDINGS ARE INVALID IN THIS C ASE. HE SUBMITTED THAT THE ASSESSEE HAS TAKEN A SPECIFIC GROUND OF AP PEAL ON THIS ISSUE BEFORE THE CIT(A), BUT THE CIT(A) HAS NOT GIVEN ANY SPECIFIC FINDING ON THE ISSUE, AND THEREFORE, THE ISSUE MAY BE SET ASID E TO THE FILE OF THE CIT(A). THE LEARNED COUNSEL FOR THE ASSESSEE FURTHE R SUBMITTED THAT THE OTHER ISSUE REGARDING DISALLOWANCE OF COMMISSION MA Y ALSO BE SET ASIDE TO THE FILE OF THE CIT(A). THE LEARNED DEPARTMENTA L REPRESENTATIVE HAS RELIED ON THE ORDER OF THE ASSESSING OFFICER AND TH E CIT(A). HE SUBMITTED THAT THE ISSUE OF ISSUANCE OF SEARCH WARRANT IN TH E NAME OF THE ASSESSEE IS A MATTER OF RECORD AND THE SAME MAY BE RESTORED TO THE FILE OF THE AUTHORITIES BELOW FOR RECORDING A FINDING ON THE IS SUE AFRESH. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IN VIEW OF THE SUBMISSIONS OF THE PARTIES, WE ARE OF THE CONSIDERE D VIEW THAT THE ISSUE REGARDING THE ISSUANCE OF WARRANT OF SEARCH IN THE NAME OF THE ASSESSEE, SINCE GOES TO THE ROOT OF THE MATTER, SHOULD BE ADJ UDICATED IN ACCORDANCE WITH LAW, AFTER VERIFYING THE FACTS FROM THE RECORD . ACCORDINGLY, THE ISSUES IN THE GROUNDS OF APPEAL OF THE ASSESSEE ARE RESTOR ED TO THE FILE OF THE CIT(A), WITH A DIRECTION TO DECIDE THE SAME AFRESH IN ACCORDANCE WITH LAW, AND AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARI NG TO THE PARTIES, AND TO RECORD A FINDING REGARDING THE ISSUE OF WARRANT OF SEARCH IN THE NAME OF THE ASSESSEE, AFTER VERIFICATION OF THE RECORD. THE OTHER ISSUE REGARDING DISALLOWANCE OF COMMISSION IS ALSO RESTORED TO THE FILE OF THE CIT(A), WITH ITA NO.1674/H/2010 SMT. B.JAYAWANI REDDY, HYDERABAD. 3 A DIRECTION TO DECIDE THE SAME AFRESH ON MERITS, AF TER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE PARTIES. WE DIRECT A CCORDINGLY. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 8.7.2011 SD/- SD/- (CHANDRA POOJARI) ( G.C. G UPTA) A CCOUNTANT MEMBER V ICE PRESIDENT DATED THE 8 TH JULY, 2011 COPY FORWARDED TO: 1. SMT. B.JAYAWANI REDDY, C/O., SHRI A.V.RAGHURAM, ADV OCATE, 610, 6 TH FLOOR, BABUKHAN ESTATE, BASHEERBAGH, HYDERABAD 1 2. ASST. COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE - 3, HYDERABAD 3. CIT (A) - VII , HYDERABAD. 4. COMMISSIONER OF INCOME - TAX , CENTRAL , HY DERABAD 5. THE D.R., ITAT, HYDERABAD. B.V.S