Karim Nawaz Alladin, Hyderabad V. Asst. Commissioner of Income Tax, Circle-6(1), Hyderabad

ITA 184/HYD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 6539 (ITAT-HYDERABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 05-05-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 18-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S V S S PRASAD
• Assessee Lawyers: V SIVA KUMAR; C S SUBRAMANYAM
• Keywords: Opportunity of being heard
• Section: 147; 68; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SMT P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER ITA NOS. 182 & 184/HYD/2013 ASSESSMENT YEARS: 2006-07 & 2008-09 KARIM NAWAZ ALLADIN, HYDERABAD. PAN ABQPA 5282K VS. ASST. COMMISSIONER OF INCOME-TAX, CIRCLE 6(1), HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI C.S. SUBRAMANYAM & SHRI V. SIVAKUMAR REVENUE BY : SHRI S.V.S.S. PRASAD DATE OF HEARING 05-05-2016 DATE OF PRONOUNCEMENT 20-05-2016 O R D E R PER S. RIFAUR RAHMAN, A.M.: BOTH THESE APPEALS ARE PREFERRED BY THE ASSESSEE A GAINST A COMMON ORDER OF THE LEARNED COMMISSIONER OF INCOME- TAX(APPEALS) - IV, HYDERABAD FOR AYS.2006-07 & 2008-09. 2. BRIEFLY THE FACTS OF THE CASE AS CULLED OUT FROM THE AY 2006-07 ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND HAS NOT FILED HIS RETURN OF INCOME FOR THE AY 2006-07. SURVEY OPERATIONS U/S 13 3A OF THE INCOME-TAX ACT WERE CONDUCTED IN THE CASE OF THE AS SESSEE ON 11/03/2010. DURING THE COURSE OF SURVEY, IT WAS NOT ICED THAT THE ASSESSEE SOLD SEVERAL PROPERTIES ON WHICH LONG TERM CAPITAL GAINS IS CHARGEABLE TO TAX. SINCE THE ASSESSEE DID NOT FILE THE RETURN FOR AY 2006-07, A NOTICE U/S 148 WAS ISSUED AND SERVED ON THE ASSESSEE ON 29/03/2010. IN RESPONSE TO THE NOTICE ISSUED, THE A SSESSEE FILED A 2 ITA NOS. 182 & 184/H/13 KARIM NAWAZ ALLADIN RETURN OF INCOME ON 07/05/2010 DISCLOSING THE TAXAB LE INCOME AT RS. 90,03,678/-. THE AO COMPLETED THE ASSESSMENT U/S 14 4 R.W.S 147 OF THE ACT, DETERMINING THE INCOME OF THE ASSESSEE AT RS. 11,52,70,662/- BY MAKING ADDITION U/S 68 OF THE ACT. 3. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). 4. AS THERE IS A SHORTFALL OF SELF ASSESSMENT TAX P AID BY THE ASSESSEE FOR THE AYS 2006-07 AND 2008-09, THE CIT(A ) DISMISSED THE APPEALS IN LIMINE U/S 249(4)(A) OBSERVING THAT THE ASSESSEE HAS FAILED TO PAY THE FULL AMOUNT OF SELF ASSESSMENT TAX DUE E VEN IN THE COURSE OF THE APPELLATE PROCEEDINGS. 5. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US F OR BOTH THE AYS UNDER CONSIDERATION. 6. BEFORE US, THE LD. AR OF THE ASSESSEE FILED WRIT TEN SUBMISSIONS WHEREIN IT WAS STATED THAT SUBSEQUENT TO FILING APP EALS BEFORE THE ITAT FOR THE AYS UNDER CONSIDERATION, THE ASSESSEE HAS PAID THE TAX DUE ON INCOME DECLARED BY HIM AND TO THIS EFFECT HE SUBMITTED THE CHALLANS AS PROOF FOR MAKING THE PAYMENT. HE, THERE FORE, SUBMITTED THAT THE TAX ON ADMITTED INCOME HAVING BEEN PAID BY THE ASSESSEE, THE APPEALS FOR AYS 2006-07 AND 2008-09 MAY BE TREA TED AS VALID IN CONSONANCE WITH THE DIRECTIONS ISSUED BY THE ITAT I N THE CASE OF SRI SURAKSHITA HOMES, HYDERABAD IN ITA NO. 435/HYD/2012 FOR AY 2008- 09, VIDE ORDER DATED 31/08/2012 AND THE APPEALS MAY BE RESTORED BACK TO THE FILE OF THE CIT(A) FOR ADJUDICATION ON MERITS. 7. LD. DR ON THE OTHER HAND, HAS NOT OPPOSED THE SU BMISSIONS OF THE LD. AR. 8. CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES A ND PERUSED THE MATERIAL FACTS ON RECORD AS WELL AS THE ORDERS OF R EVENUE AUTHORITIES. 3 ITA NOS. 182 & 184/H/13 KARIM NAWAZ ALLADIN IT IS A FACT ON RECORD THAT THE ASSESSEE HAS DISCHA RGED THE ADMITTED TAX LIABILITY DURING PENDENCY OF APPEALS BEFORE THE ITAT. UNDOUBTEDLY, THE CONDITION PRECEDENT FOR VALIDITY OF THE APPEAL BEFORE THE CIT (A) IS PAYMENT OF ADMITTED TAX ON THE RETURNED INCOME AS P ROVIDED U/S 249(4) OF THE ACT. AS HELD BY THE ITAT, HYDERABAD B ENCH IN ITA NO.402/HYD/2011 IN CASE OF D.S. KARUNAKARA REDDY VS . DCIT, NON PAYMENT OF ADMITTED TAX WHILE FILING AN APPEAL IS A CURABLE DEFECT AND TILL SUCH TIME ADMITTED TAX IS NOT PAID THE APPEAL REMAINS DEFECTIVE AND NOT VALID AND WHEN SUCH DEFECT IS CURED BY PAYM ENT OF TAX ON THE RETURNED INCOME BY THE ASSESSEE, THE APPEAL BECOMES VALID AND SUCH VALID APPEAL DEEMED TO HAVE BEEN FILED. RESPECTFULL Y FOLLOWING THE SAID DECISION OF THE COORDINATE BENCH, WE RESTORE T HE APPEALS UNDER CONSIDERATION BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO ADJUDICATE THE APPEALS ON MERITS AND IN ACCORDANCE WITH LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9. IN THE RESULT, BOTH THE APPEALS UNDER CONSIDERAT ION ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 20 TH MAY, 2016. SD/- SD/- (P. MADHAVI DEVI) (S. RIFAUR RAHM AN) JUDICIAL MEMBER A CCOUNTANT MEMBER HYDERABAD, DATED: 20 TH MAY, 2016 KV COPY TO:- 1) KARIM NAWAZ ALLADIN, C/O MAHESH, VIRENDER & SRI RAM, CAS., 6-3-788/36 & 37A, AMEERPET, HYDERABAD. 2) ACIT, CIRCLE 6(1), . 3 CIT(A) - IV, HYDERABAD 4) CIT III, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDE RABAD. 4 ITA NOS. 182 & 184/H/13 KARIM NAWAZ ALLADIN S.NO. DESCRIPTION DATE INTLS 1. DRAFT DICTATED ON SR.P.S./P.S 2. DRAFT PLACED BEFORE AUTHOR SR.P.S/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.P.S./PS SR.P.S./ P.S 6. KEPT FOR PRONOUNCEMENT ON SR. P.S./P.S. 7. FILE SENT TO THE BENCH CLERK SR.P.S./P.S 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER