Sri Kimidi Kala Venkata Rao, Visakhapatnam V. The DCIT, Visakhapatnam

ITA 200/VIZ/2017

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9577 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 8 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 10-04-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Keywords: Additional evidence
• Section: 147; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , ACCOUNTANT MEMBER . / I . T .A.NO. 2 00 /VIZ/ 201 7 ( / ASSESSMENT YEAR: 20 10 - 20 1 1 ) SRI KIMIDI KALA VENKATA RAO REGIDI, AMADALAVALASA SRIKAKULAM [PAN : A LUPK8302Q ] DY. COMMISSIONER OF INCOME TAX CIRCLE - 4(1) VISAKHAPATNAM ( / APPELLANT) ( / RESPONDENT) / APPELLANT BY : SHRI Y.A.RAO, AR / RESPONDENT BY : S MT.SUMAN MALIK , DR / DATE OF HEARING : 06 . 1 2 . 2018 / DATE OF PRONOUNCEMENT : 20 . 1 2 .2018 / O R D E R PER V.DURGA RAO , JUDICIAL MEMBER: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE PRINCIPAL COMMISSIONER OF INCOME TAX (APPEALS ) [CIT(A)] - 2 , VISAKHAPATNAM VIDE ITA.NO.387/2015 - 16/CIT(A) - 2/C - 4(1)/VSP/2016 - 17 DATED 27 . 02 .201 7 FOR THE A SSESSMENT Y EAR (A.Y.) 20 10 - 11 . 2 I.T.A. NO 200 /VIZ/201 7 SRI KIMIDI KALA VENKATA RAO, SRIKAKULAM 2. IN THIS CASE, THE APPEAL WAS FILED BY THE ASSESSEE AGITATING AS MANY AS EIGHT GROUNDS. THE ORDER WAS PASSED BY THIS TRIBUNAL VIDE ORDER DATED 06.04.2018 AND IN THE SAID ORDER, THE ISSUE RELATING TO BROKERAGE PAYMENT OF RS.12,00,000/ - TO SIX PERSONS WAS PRESSED BY THE LD.AR. SINCE THE ASSESSEE FAILED TO FURNISH THE DETAILS BEFORE THE ASSESSING OFFICER (AO), THE TRIBUNAL HAS REMITTED THE MATTER BACK TO THE FILE OF THE CIT(A) TO ADMIT THE ADDITIONAL EVIDENCES AND PASS THE ORDER IN ACCORDANCE WITH LAW. SUBSEQUENT TO PASSING THE ORDER OF THIS TRIBUNAL DATED 06.04.2008, THE ASSESSEE FILED MISCELLANEOUS APPLICATION STATING TH AT THE ITAT FAILED TO ADJUDICATE THE GROUND NO.6 RELATING TO CHARGING OF INTEREST U/S 234A OF THE INCOME TAX ACT (HEREINAFTER CALLED AS ACT). AFTER VERIFICATION OF THE ARGUMENTS AND THE GROUNDS ADVANCED BY THE LD.AR, THE MISCELLANEOUS WAS ALLOWED TO ADJ UDICATE GROUND NO.6 AND THE ORDER OF THE TRIBUNAL WAS RECALLED. DURING THE APPEAL HEARING THE LD.A.R ARGUED THAT THE AO LEVIED THE INTEREST U/S 234A FOR THE IMPUGNED A.Y. FROM 01.08.2010 TO 11.08.2014 WHICH IS INCORRECT AND NOT IN ACCORDANCE WITH THE LAW. AS PER THE PROVISIONS OF THE ACT, THE ASSESSEE IS PERMITTED TO FILE THE RETURN OF INCOME U/S 139(1) TILL ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR AND U/S 139(4) TILL TWO YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. IN 3 I.T.A. NO 200 /VIZ/201 7 SRI KIMIDI KALA VENKATA RAO, SRIKAKULAM THE INSTANT CAS E, THE ASSESSEE IS PERMITTED TO FILE THE RETURN OF INCOME UPTO 31.03.2010 AND SUBSEQUENTLY, THE ASSESSEE IS NOT PERMITTED TO FILE THE VALID RETURN OF INCOME TILL SUCH TIME THE NOTICE U/S 148 IS ISSUED. THEREFORE, THE LD.AR CONTENDED THAT FROM 01.04.2012 T O TILL THE DATE OF ISSUE OF NOTICE U/S 148, THERE IS NO PROVISION IN THE INCOME TAX TO ALLOW THE ASSESSEE TO FILE THE RETURN OF INCOME. THEREFORE, ARGUED THAT CHARGING OF INTEREST U/S 234A FOR THE PERIOD FROM 01.04.2012 TO TILL DATE OF ISSUING THE NOTICE IS ILLEGAL. THE ASSESSEE RELIED ON THE DECISION OF HONBLE MUMBAI HIGH COURT IN THE CASE OF M/S PRITI PITHAWALA VS. INCOME TAX OFFICER IN 203 - LL - 0312 - 10 DATED 12.03.2003 AND ALSO THE DECISION OF ITAT JODHPUR BENCH IN I.T.A NO.425/JU/2009 IN ITO WARD - 1 (V )GANGANAGAR VS. AMAR CHAND BOARD, WHEREIN BOTH HONBLE HIGH COURT AS WELL AS THE COORDINATE BENCH HELD THAT IF THE ASSESSMENT IS MADE FOR THE FIRST TIME U/S 147 OF THE ACT, THEN THE ASSESSEE CANNOT BE MADE LIABLE TO PAY INTEREST FOR THE PERIOD DURING WHICH IT WAS NOT POSSIBLE ON THE PART OF THE ASSESSEE TO FILE RETURN I.E. AFTER ONE YEAR FROM THE END OF THE ASSESSMENT YEAR, TILL ISSUANCE OF NOTICE U/S 148. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED ON RECORD. IN THIS CASE, THE ASSES SEE HAS NOT FILED THE RETURN OF INCOME AND THE TIME LIMIT FOR FILING THE VALID RETURN OF INCOME WAS EXPIRED ON 31.03.2012. 4 I.T.A. NO 200 /VIZ/201 7 SRI KIMIDI KALA VENKATA RAO, SRIKAKULAM SUBSEQUENTLY, THE ASSESSEE IS NOT PERMITTED TO FILE THE VALID RETURN OF INCOME AS PER THE DECISION OF HONBLE BOMBAY HIGH COURT IN T HE CASE OF PRITI PITHAWALA CITED SUPRA, WHEREIN THE HONBLE HIGH COURT HELD THAT THE ASSESSEES SHOULD NOT BE MADE LIABLE TO PAY INTEREST FOR THE PERIOD DURING WHICH IT WAS NOT POSSIBLE ON THEIR PART TO FILE THE RETURNS. ITAT JODHPUR BENCH HAS FOLLOWED THE ORDER OF THE HONBLE BOMBAY HIGH COURT AND RENDERED THE SIMILAR DECISION. IN THIS APPEAL, THE ORIGINAL ISSUE REGARDING THE PAYMENT OF BROKERAGE WAS REMITTED BACK TO THE FILE OF THE LD.CIT(A) FOR RE ADJUDICATION ON MERITS. THEREFORE, WE DEEM IT FIT TO REMI T THE ISSUE TO THE FILE OF THE LD.CIT(A) TO DECIDE THE ISSUE OF CHARGING OF INTEREST U/S 234A ALSO ON MERITS. THE LD.CIT(A) IS DIRECTED TO TAKE INTO CONSIDERATION OF THE DECISIONS OF HONBLE BOMBAY HIGH COURT AND THE DECISION OF ITAT, JODHPUR BENCH IN THE CASE CITED SUPRA WHILE DISPOSING THE APPEAL. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 5 I.T.A. NO 200 /VIZ/201 7 SRI KIMIDI KALA VENKATA RAO, SRIKAKULAM O RDER PRONOUNCED IN THE OPEN COURT ON 20 TH DECEMBER , 2018 . S D/ - S D/ - ( . . ) ( . ) ( D.S. SUNDER SINGH ) (V. DURGA RAO) /ACCOUNTANT MEMBER /JUDICIAL MEMBER /VISAKHAPATNAM /DATED : 20 . 1 2 .2018 L.RAMA, SPS / COPY OF THE ORDER FORWARDED TO: - 1. / THE ASSESSEE SRI KIMIDI KALA VENKATA RAO, REGIDI, AMADALAVALASA, SRIKAKULAM 2 . / THE REVENUE DY.COMMISSIONER OF INCOME TAX, CIRCLE - 4(1) , VISAKHAPATNAM 3 . THE COMMISSIONER OF INCOME TAX - 2 , VISAKHAPATNAM 4. THE COMMISSIONER OF INCOME TAX (APPEALS) - 2, VISAKHAPATNAM 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM