M/s Nishi Egg Centre, Tanuku V. The DCIT, Central Circle, Rajahmundry

ITA 207/VIZ/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94088 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 4 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-07-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 20-07-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 25-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D KOMALI KRISHNA
• Keywords: Revision of order
• Section: 40A(3); 143(3)

Judgement Text

ITA NO.207/VIZAG/2011 M/S. NISHI EGG CENTRE, TANUKU IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI B.R. BASKARAN , ACCOUNTANT MEMBER ITA NO.207/VIZAG/2011 ASSESSMENT YEAR : 2005-06 M/S. NISHI EGG CENTRE TANUKU VS. DCIT CENTRAL CIRCLE RAJAHMUNDRY (APPELLANT) (RESPONDENT) (PAN NO.AABFN 7723L) ASSESSEE BY: SHRI G.V.N. HARI, ADVOCATE REVENUE BY: SMT. D. KOMALI KRISHNA, A.R. DATE OF HEARING : 21.07.2015 DATE OF PRONOUNCEMENT : 21.07.2015 ORDER PER D. MANMOHAN, VICE PRESIDENT:- THIS APPEAL BY THE ASSESSEE FIRM IS DIRECTED AGAIN ST THE ORDER PASSED BY CIT(A)-I, HYDERABAD AND IT PERTAINS TO THE ASSES SMENT YEAR 2005-06. 2. THE ASSESSEE FIRM WAS TRADING IN EGGS. FOR THE YEAR UNDER CONSIDERATION IT HAD FILED RETURN OF INCOME ON 27.1 2.2006 DECLARING TOTAL INCOME OF RS.25,11,390/-. 3. CONSEQUENT TO THE SEARCH OPERATION CONDUCTED ON THE ASSESSEE, THE CASE WAS TAKEN UP FOR SCRUTINY AND ASSESSMENT WAS C OMPLETED ON 29.12.2006 ACCEPTING THE INCOME RETURNED. 4. THE REVISIONAL AUTHORITY CALLED FOR THE ASSESSME NT RECORDS AND NOTICED THAT THE ASSESSMENT MADE BY THE ASSESSING OFFICER I S ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE ON SEVERAL I SSUES AND IN PARTICULAR WITH REGARD TO THE NON-APPLICATION OF SECTION 40A(3) OF THE INCOME-TAX ACT I.E. CASH PURCHASE IN VIOLATION OF THE PROVISIONS OF SEC TION 40A(3) OF THE ACT AND THE CONSEQUENT DISALLOWANCE TO BE MADE THEREON. VI DE ORDER DATED ITA NO.207/VIZAG/2011 M/S. NISHI EGG CENTRE, TANUKU 2 4.3.2009, THE REVISIONAL AUTHORITY OBSERVED THAT TH ERE ARE TOTAL PURCHASES OF RS.95,99,198/-, OUT OF WHICH CASH PURCHASES WERE TO THE TUNE OF RS.17,57,648/-. IN VIEW OF THE MANDATORY REQUIREME NT OF SECTION 40A(3) OF THE ACT, THE ASSESSING OFFICER OUGHT TO HAVE CONSID ERED 20% THEREOF AS AMOUNT DISALLOWABLE U/S 40A(3) OF THE ACT AND DIREC TED THE ASSESSING OFFICER ACCORDINGLY. IT APPEARS THAT ASSESSEE HAS NOT PREFE RRED ANY APPEAL AGAINST THE SPECIFIC DIRECTION GIVEN BY THE CIT. 5. CONSEQUENT TO THE DIRECTION GIVEN BY THE COMMISS IONER, THE ASSESSING OFFICER PASSED AN ORDER, WHEREIN, HE DISALLOWED A S UM OF RS.3,51,529/-. ON AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDE R PASSED U/S 143(3) R.W.S. 263 OF THE ACT, THE LD. CIT(A) OBSERVED THAT THERE WAS NO EXCEPTIONAL OR UNAVOIDABLE CIRCUMSTANCES SHOWN SO AS TO EXPLAIN TH AT THE CASE FALLS WITHIN THE EXCEPTIONS PROVIDED IN RULE 6DD. HE THUS AFFIR MED THE ACTION OF THE ASSESSING OFFICER. 6. FURTHER AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD. COUNSEL SUBMITTED THAT THE TAX AUTHORITIES WERE NOT JUSTIFIED IN MAKING THE ADDITION WITHOUT CONSIDERING THE FACTS AND CIRCUMST ANCES OF THE CASE. AT THE OUTSET, IT MAY BE NOTICED THAT THERE IS A SPECIFIC DIRECTION GIVEN BY THE REVISIONAL AUTHORITY AND WHILE PASSING CONSEQUENTIA L ORDER U/S 143(3) R.W.S. 263 OF THE ACT, THE ROLE OF THE A.O. IS LIMITED TO MAKING AN ASSESSMENT IN CONFIRMITY WITH THE DIRECTIONS GIVEN BY THE COMMISS IONER AND IF THE ASSESSEE IS AGGRIEVED BY SUCH DIRECTIONS, A PROPER COURSE OF ACTION WOULD BE TO PREFER AN APPEAL AGAINST THE ORDER PASSED U/S 263 OF THE A CT. IN OTHER WORDS, IN THE CIRCUMSTANCES OF THE CASE, THE APPEAL FILED BY THE ASSESSEE, AGAINST THE ORDER PASSED U/S 143(3) R.W.S. 263 OF THE ACT, IS NOT IN ACCORDANCE WITH LAW. WHEN THE SAME WAS PUT TO THE ASSESSEES COUNSEL, LD. C OUNSEL FAIRLY ADMITTED THE FACTUAL POSITION BUT SUBMITTED THAT THE CASE FALLS WITHIN THE EXCEPTIONS PROVIDED UNDER RULE 6DD. 7. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. CO UNSEL ON BEHALF OF THE ASSESSEE AND ALSO PERUSED THE RECORD. IN OUR CO NSIDERED OPINION, THE APPEAL FILED BY THE ASSESSEE DESERVES TO BE DISMISS ED ON THE PRELIMINARY ITA NO.207/VIZAG/2011 M/S. NISHI EGG CENTRE, TANUKU 3 ISSUE I.E. THE ASSESSEE CANNOT BE AGGRIEVED OF THE ORDER PASSED BY THE ASSESSING OFFICER SINCE THE CONSEQUENTIAL ORDER IS ESSENTIALLY BASED UPON A SPECIFIC DIRECTION GIVEN BY THE REVISIONAL AUTHORIT Y. IT IS FOR THE ASSESSEE TO PROVE BEFORE THE REVISIONAL AUTHORITY THAT THIS CAS E FALLS WITHIN THE EXCEPTIONS PROVIDED UNDER RULE 6DD AND IF SUCH A PLEA IS IGNOR ED, THE PROPER REMEDY IS TO PREFER AN APPEAL AGAINST THE ORDER PASSED U/S 26 3 OF THE ACT. HOWEVER, IN THE INSTANT CASE, THE APPEAL HAVING NOT BEEN PREFER RED AGAINST THE ORDER PASSED U/S 263 OF THE ACT, WE ARE UNABLE TO APPRECI ATE THE CONTENTION OF THE ASSESSEE ON MERITS AT THIS STAGE SINCE THE MATTER D OES NOT ARISE OUT OF THE ORDER PASSED U/S 143(3) R.W.S. 263 OF THE ACT. WIT H THESE OBSERVATIONS, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED AND NOT MAINTAINABLE. PRONOUNCED IN THE OPEN COURT ON 21 ST JULY, 2015 SD/- SD/- (B.R. BASKARAN) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT VG/SPS VISAKHAPATNAM, DATED 21 ST JULY, 2015 COPY TO 1 M/S. NISHI EGG CENTRE, C/O I.S.B. SANKAR, AUDITOR, D.NO.35-3-21, STATION ROAD, NEAR HEAD POST OFFICE, TANUKU-534 211. 2 THE DCIT, CENTRAL CIRCLE, RAJAHMUNDRY 3 THE ACIT (CENTRAL RANGE), VISAKHAPATNAM 4 THE CIT(CENTRAL), HYDERABAD 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER ASST. REGISTRAR INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM