Assistant Commissioner of income Tax, Circle-1(1), , Rajahmundry V. K.S.V. Raja, Narasapur

ITA 207/VIZ/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9879 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 21-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Keywords: Audit objection; Tax effect
• Section: 143(3)

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. 207 /VIZ/201 8 ( / ASSESSMENT YEAR: 20 1 0 - 1 1 ) ASST.COMMISSIONER OF INCOME - TAX C IRCLE - 1 (1) RAJAHMUNDRY VS. SRI K.S.V.RAJA D.NO.6 - 12 - 18, MAIN ROAD NARSAPUR WEST GODAVARI DIST. [PAN : AKUPK9237H] ( / APPELLANT) ( / RESPONDENT) CROSS OBJECTION NO.43/VIZ/2018 (ARISING OUT OF I.T.A 207/VIZ/2018) ( / ASSESSMENT YEAR: 2010 - 11) SRI K.S.V.RAJA D.NO.6 - 12 - 18, MAIN ROAD NARSAPUR WEST GODAVARI DIST. [PAN : AKUPK9237H] ASST.COMMISSIONER OF INCOME - TAX C IRCLE - 1(1) RAJAHMUNDRY ( / APPELLANT) ( / RESPONDENT) /REVENUE BY : SMT SUMAN MALIK, DR / ASSESSEE BY : SHRI G.V.N.HARI, AR / DATE OF HEARING : 27 . 03. 201 9 / DATE OF PRONOUNCEMENT : 03 .04. 201 9 2 I.T.A. NO . 207 /VIZ/201 8 AND CO NO.43/VIZ/2018 SRI K.S.V.RAJA, WEST GODAVARI DIST. / O R D E R PER D.S. SUNDER SINGH, ACCOUNTANT MEMBER: DELAY : THE APPEAL FILED BY THE REVENUE IS TIME BARRED BY 31 DAYS AND THE CROSS OBJECTION FILED BY THE ASSESSEE IS TIME BARRED BY 9 DAYS. THE REVENUE FILED CONDONATION PETITION REQUESTING TO CONDONE THE DELAY DUE TO THE CIRCUMSTANCES BEYOND THE CONTROL OF THE ASSESSING OFFICER . AFTE R HEARING BOTH THE PARTIES THE DELAY IS CONDONED. 2. IN THIS CASE, TAX EFFECT IS BELOW RS.20 LAKHS AND THE REVENUE HAS RAISED THE GROUND STATING THAT THE CASE IS COVERED UNDER EXCEPTIONAL CATEGORY UNDER CLAUSE - 8(C) OF CBDT CIRCULAR NO.21/2015 FOR PREFER RING APPEAL I.E. REVENUE AUDIT OBJECTION WHICH WAS ACCEPTED BY THE DEPARTMENT. DURING THE APPEAL HEARING, THE LD.DR DID NOT PRODUCE THE GIST OF REVENUE AUDIT OBJECTION INSPITE OF GIVING REPEATED OPPORTUNITIES. IT IS ALSO OBSERVED IN THIS CASE THAT APPE AL WAS FILED ORIGINALLY ON 16.05.2018 AGAINST THE ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 147 OF THE ACT. HOWEVER, THE DEPARTMENT HAS FILED ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)] - 12, HYDERABAD VIDE APPEAL NO.10366/2017 - 18 D ATED 10.01.2018 RELATING TO THE ASSESSMENT ORDER PASSED U/S 143(3) DATED 3 I.T.A. NO . 207 /VIZ/201 8 AND CO NO.43/VIZ/2018 SRI K.S.V.RAJA, WEST GODAVARI DIST. 19.03.2013WHICH IS INCORRECT ORDER. THE GROUNDS OF APPEAL FILED ALONG WITH APPEAL MEMO WERE ALSO RELATED TO THE ORDER PASSED U/ S 143(3). SUBSEQUENTLY, THIS BENCH HAS ASKED THE LD.DR TO RECTIFY THE MISTAKE AND TO FILE THE CORRECT ORDERS RELATING TO THE APPEAL OF LOWER AUTHORITIES. THE DEPARTMENT HAS FILED REVISED FORM NO.36 ON 21.12.2018 MENTIONING THE APPEAL IN RESPECT OF ORDER U/S 143(3) BUT NOT FILED IMPUGNED ASSESSMENT ORDER AL ONG WITH THE REVISED FORM NO.36. THE APPEAL IS DEFECTIVE SINCE THE IMPUGNED ASSESSMENT ORDER WAS NOT FILED. ON 19.03.2019, WHEN THE CASE C A ME UP FOR HEARING, THE LD.DR ASKED FOR SOME MORE TIME AND THE APPEAL WAS FIXED FOR HEARING ON 27 . 03 . 2019. ON 27.03.20 19 ALSO THE DEFECT WAS NOT RECTIFIED. FROM THE PERUSAL OF THE APPEAL PAPERS FILED, TAX EFFECT IN THIS CASE IS LESS THAN RS.20 LAKHS , SINCE , THE ADDITION MADE U/S 143(3) R.W.S. 147 WAS ONLY RS.5,00,860/ - . THOUGH THE GROUNDS OF APPEAL RAISED ON VARIOUS ISS UES ARE RELATED TO THE ESTIMATION OF INCOME, NO SUCH ASSESSMENT ORDER WAS PLACED BEFORE US. INSPITE OF GIVING SEVERAL OPPORTUNITIES, THE REVENUE FAILED TO RECTIFY THE DEFECTS AND THE APPEAL IS DEFECTIVE AND THE TAX EFFECT IN THIS CASE IS LESS THAN RS.20 L AKHS. IT IS PAINFUL TO PUT ON RECORD THAT INSPITE OF REMINDING THE REVENUE TO RECTIFY THE MISTAKE FROM 05.12.2018 ONWARDS AND POSTING THE CASE FOR FOUR TIMES THE REVENUE DID NOT MAKE ANY EFFORT TO 4 I.T.A. NO . 207 /VIZ/201 8 AND CO NO.43/VIZ/2018 SRI K.S.V.RAJA, WEST GODAVARI DIST. RECTIFY THE MISTAKES. SINCE THE APPEAL IS DEFECTIVE AND T HE DEPARTMENT DID NOT RECTIFY THE DEFECT AFTER GIVING OPPORTUNITY ALSO, WE DISMISS THE APPEAL FILED BY THE REVENUE IN LIMINE. 3. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED IN LIMINE AND THE CROSS OBJECTIONS FILED BY THE ASSESSEE HAVE BECOME INFRUCT UOUS AND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD APRIL, 2019. S D/ - S D/ - ( . ) ( . . ) (V. DURGA RAO) ( D.S. SUNDER SINGH ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM /DATED : 03 .0 4 .2019 L.RAMA, SPS 5 I.T.A. NO . 207 /VIZ/201 8 AND CO NO.43/VIZ/2018 SRI K.S.V.RAJA, WEST GODAVARI DIST. / COPY OF THE ORDER FORWARDED TO: - 1 . / THE REVENUE ASST.COMMISSIONER OF INCOME TAX, C IRCLE - 1(1) RAJAHMUNDRY 2 . / THE ASSESSEE - SRI K.S.V.RAJA, D.NO.6 - 12 - 18, MAIN ROAD, NARSAPUR WEST GODAVARI DIST. 3. THE PR. COMMISSIONER OF INCOME TAX , RAJAMAHENDRAVARAM 4. THE COMMISSIONER OF INCOME - TAX (APPEALS) - 12 , HYDERABAD 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM