ACIT, Central Circle-3(1), Hyderabad, Hyderabad V. B. Radha, Hyderabad, Hyderabad

ITA 1756/HYD/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2692 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 31-07-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 22-06-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N SWAPNA
• Keywords: Reopening of assessment
• Section: 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B, HYDERABAD BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER I.T.A. NO. 1756/HYD/2016 ASSESSMENT YEAR: 2008-09 ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3(1), HYDERABAD VS SMT. B. RADHA, HYDERABAD [PAN: AFSPB9528F] (APPELLANT) (RESPONDENT) FOR REVENUE : SMT. N. SWAPNA, DR FOR ASSESSEE : SHRI K.C. DEVDAS, AR DATE OF HEARING : 03-08-2017 DATE OF PRONOUNCEMENT : 03-08-2017 O R D E R PER CHANDRA POOJARI, A.M. : THIS IS AN APPEAL FILED BY REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-3, VISAKHAPATN AM, DATED 11-04-2016. REVENUE HAS RAISED THE FOLLOWING GROUND S OF APPEAL: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE CIT(A) IS CORRECT IN HOLDING THAT THE REOPENING IS BAD IN LAW : AND 2. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUNDS OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 2. ORIGINALLY IN THIS CASE, THE APPEAL WAS FILED BY REVENUE AS WTA NO. 74/HYD/2016 BY FILING FORM-F [SEE SUB-RULE( 1) OF RULE 6] FILED ON 22-06-2016. THIS WAS BROUGHT TO THE NOTICE OF THE LD.DR I.T.A. NO. 1756/HYD/2016 :- 2 - : AT THE TIME OF HEARING. LATER, THE DEPARTMENT FILED A REVI SED APPEAL, ACCORDINGLY FILED A FRESH APPEAL ON 10-11-2016 BY F ILING FORM 36 [SEE RULE 47(1)]. THERE WAS A DELAY OF FILING THIS APPEAL BY 140 DAYS, THE CONDONATION PETITION WAS FILED BY THE REVENUE. IT WAS EXPLAINED BEFORE THE BENCH THAT THE APPEAL IN FORM-F UNDER WEAL TH TAX ACT WAS WRONGLY FILED INSTEAD OF FORM-36 UNDER INCOME TA X ACT AND IT WAS ON ACCOUNT OF WORK PRESSURE AND SHIFTING OF THE OF FICE PREMISES FROM POSNETT BHAVAN, TILAK ROAD, AAYAKAR BHAVAN, BASH EERBAGH, HYDERABAD. IT IS ALSO EXPLAINED THAT FORM 36 WAS FILE D AT THE EARLIEST UPON KNOWING THE ERROR COMMITTED BY THE DEPARTM ENT. IN OUR OPINION, THE REASON EXPLAINED BY THE DEPARTMENT FO R FILING THE APPEAL UNDER WRONG ACT INSTEAD OF INCOME TAX ACT IS BO NAFIDE AND UNINTENTIONAL. THEREFORE, WE HAVE TO CONSIDER WHETHER THE MISTAKE IN FILING THE APPEAL UNDER WRONG ACT IS SUFFICIENT CAU SE FOR CONDONING THE DELAY OF 140 DAYS. IN OUR OPINION, THE EXPRESSION SUFFICIENT CAUSE SHOULD BE INTERPRETED FOR ADVANCEMENT OF SUBSTANTIAL JUSTICE. THEREFORE, ADVANCEMENT OF SUBSTAN TIAL JUSTICE IS THE PRIME FACTOR WHILE CONSIDERING THE REASONS FO R CONDONING THE DELAY. IN THIS CASE ON OUR HAND, THE ISSUE ARISES FO R CONSIDERATION ON MERIT IS WHETHER THE CIT(A) JUSTIFIED IN CANCELLING ASSESSME NT BY HOLDING THAT REOPENING OF ASSESSMENT IS BAD IN LAW THOUGH THE ASSESSMENT WAS NOT REOPENED ASSESSMENT U/S. 147 OF THE ACT . ON THE OTHER HAND, IT WAS AN ORIGINAL ASSESSMENT U/S. 143 (3) OF THE ACT. 3. THEREFORE, THE ISSUE RAISED BY THE REVENUE IN ITS A PPEAL IS HAVING MERIT. BUT THERE IS A TECHNICAL DEFECT IN THE AP PEAL SINCE THE APPEAL WAS NOT FILED UNDER REQUIRED STATUTE AND REC TIFIED BY THE REVENUE IMMEDIATELY AFTER COMING TO KNOW ABOUT THE MI STAKE CREPT I.T.A. NO. 1756/HYD/2016 :- 3 - : IN FILING THE APPEAL. WHEN SUBSTANTIAL JUSTICE AND TE CHNICAL CONSIDERATION ARE PITTED EACH OTHER, THE CAUSE OF SUBSTAN TIAL JUSTICE DESERVED TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAI M TO HAVE VESTED RIGHT FOR INJUSTICE BEING DONE BECAUSE OF NON -DELIBERATE DELAY. IN THE CASE ON OUR HAND, THE ISSUE ON MERIT I S IN FAVOUR OF THE DEPARTMENT. ACCORDINGLY, WE CONDONE THE DELAY IN F ILING THE APPEAL BY THE REVENUE BEFORE THIS TRIBUNAL. ACCORDIN GLY, DELAY IS CONDONED AND APPEAL IS ADMITTED FOR ADJUDICATION. 4. NOW, COMING TO THE GROUND(S) RAISED BY THE REVENU E THAT, CIT(A) ERRED IN HOLDING THAT REOPENING OF ASSESSMEN T IS BAD IN LAW . ADMITTEDLY, IN THIS CASE, ASSESSMENT WAS PASSED U/S. 143(3) OF THE ACT AND IT IS NOT REOPENED ASSESSMENT U/S. 147 OF THE I .T. ACT SO THERE IS NO REASON TO CIT(A) TO QUASH THE ASSESSMENT BY HOLDING THAT REOPENING OF ASSESSMENT IS BAD IN LAW. ACCORDING LY, WE VACATE THIS FINDING OF THE CIT(A) AND RESTORE THE ENTIRE ISSUE TO THE FILE OF CIT(A) TO DECIDE THE ISSUE ON MERIT OF ADDITIONS MADE B Y AO FOR HIS ADJUDICATION. 5. IN THE RESULT, APPEAL OF REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD AUGUST, 2017 UPON CONCLUSION OF HEARING SD/- SD/- (D. MANMOHAN) (CHANDRA POOJARI) VICE PRESIDENT ACCOUNTANT MEMB ER HYDERABAD, DATED 3 RD AUGUST, 2017 TNMM I.T.A. NO. 1756/HYD/2016 :- 4 - : COPY TO : 1. THE ASST. COMMISSIONER OF INCOME TAX, CENTRAL C IRCLE- 3(1), HYDERABAD. 2. SMT. B. RADHA, PLOT NO. 1326, ROAD NO. 66, JUBIL EE HILLS, HYDERABAD. 3. CIT (APPEALS)-3, VISAKHAPATNAM. 4. PR. CIT (CENTRAL), HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.