Shri Praveen Venegalla, Hyderabad V. ACIT, International Taxation-II, Hyderabad

ITA 2086/HYD/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 66601 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 16-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIDISHA KALRA
• Keywords: Unexplained investment; Condonation of delay
• Section: 142(1); 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA NOS. 2085 & 2086/HYD/2011 ASSESSMENT YEAR: 2005-06 PRAVEEN VENEGALLA, APPELLANT HYDERABAD. (PAN AHBPV8596Q) VS. ASST. COMMISSIONER OF INCOME-TAX, RESPONDENT INTERNATIONAL TAXATION-II, HYDERABAD. APPELLANT BY : SHRI A. SRINIVAS RESPONDENT BY : SMT. VIDISHA KALRA DATE OF HEARING : 10/12/2012 DATE OF PRONOUNCEMENT : 20/12 /2012 ORDER PER ASHA VIJAYARAGHAVAN, J.M.: BOTH THESE APPEALS PREFERRED BY THE ASSESSEE ARE DI RECTED AGAINST THE RESPECTIVE ORDERS OF THE CIT(A)-V, HYDE RABAD, DATED 03/10/2011 FOR THE ASSESSMENT YEAR 2005-06. ITA NO. 2085/HYD/2011. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE IS AN INDIVIDUAL AND NON-RESIDENT INDIAN. DURING THE YEAR UNDER CONSIDERATION, NO RETURN WAS FILED BY THE ASSESSEE AS HE HAS NO INCOME IN INDIA. BASED ON THE INFORMATION RECEIVED FROM THE ANNUAL INFORMATION REPORT, A NOTICE U/S 142(1) WAS ISSUED BY THE AO-6(2), HYDERABAD. THE ASSESSEE HAD FURNISHED ALL INFORMATI ON PERTAINING TO ITA NOS. 2085 & 2086/HYD/2011 SHRI PRAVEEN VENEGALLA 2 THE SAID NOTICE AND THE ASSESSMENT COMPLETED DETERM INING THE TOTAL INCOME AT NIL. 3. SUBSEQUENTLY, THE CASE WAS TRANSFERRED TO THE AO , INTERNATIONAL TAXATION-II, HYDERABAD. THE AO ISSUED A NOTICE U/S 148 OF THE ACT, AS HE WAS OF THE OPINION THAT AN IN VESTMENT PERTAINING TO DEPOSITS IN CANARA BANK HAS ESCAPED A SSESSMENT. AS NO PERSON APPEARED ON BEHALF OF THE ASSESSEE, THE A SSESSMENT WAS COMPLETED EX-PARTE U/S 144 ADDING THE TOTAL DEPOSIT S IN THE CANARA BANK AMOUNTING TO RS. 19,11,000/- AS THE INCOME OF THE ASSESSEE. 4. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN AP PEAL BEFORE THE CIT(A). 5. THE CIT(A) DISMISSED THE APPEAL ON THE GROUND TH AT THE APPEAL WAS FILED BELATEDLY AS THERE WAS NO APPLICATION FOR CONDONATION OF DELAY BEFORE HIM. THE ASSESSEE CAME TO KNOW THAT TH E CIT(A) DISMISSED THE APPEAL ONLY AFTER RECEIVING THE ORDER FROM THE CIT(A). 6. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 7. WE HAVE HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PERUSED THE RECORD AS WELL AS GONE THROUGH THE ORDERS OF TH E AUTHORITIES BELOW. THE CIT(A) IN HIS ORDER AT PARA 4 STATED THA T THE ASSESSMENT ORDER WAS PASSED ON 29/12/2008 AND WAS DISPATCHED O N 30/12/2008. THE CIT(A) REPRODUCED THE ASSESSMENT OR DER WHEREIN THE DATE OF DISPATCH WAS MENTIONED AS 30/12/2008. I T WAS OBSERVED BY HIM THAT THE ASSESSEE FILED THE APPEAL ON 12/08/ 2009 AND THERE WAS A DELAY OF 194 DAYS. IT WAS FURTHER POINTED OUT THAT THE ASSESSEE HAD WRONGLY MENTIONED THE DATE OF SERVICE OF DEMAND NOTICE AS 15/07/2009 IN FORM NO. 35 WHEREAS THE ORD ER WAS ITA NOS. 2085 & 2086/HYD/2011 SHRI PRAVEEN VENEGALLA 3 DISPATCHED ON 30/12/2008. THE LEARNED COUNSEL FOR THE ASSESSEE SHRI A. SRINIVAS PRAYED THAT NO OPPORTUNITY WAS GIV EN BY THE CIT(A) TO FILE THE CONDONATION PETITION FOR DELAY IN FILIN G THE APPEAL AS THE ASSESSEE WAS NOT AWARE OF THE SAME. AFTER CONSIDERI NG THE FACTUAL MATRIX OF THE CASE, WE REMIT THE MATTER TO THE FILE OF THE CIT(A) WITH A DIRECTION TO GIVE ONE MORE OPPORTUNITY TO THE ASS ESSEE TO PUT- FORTH HIS CASE AND THEREAFTER DECIDE THE APPEAL ON MERITS AND IN ACCORDANCE WITH LAW. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 2086/HYD/2011 9. THE AO MADE THE ADDITION OF RS. 19,11,000/- ON A CCOUNT UNEXPLAINED INVESTMENT IN BANK DEPOSITS. THEREAFTER , THE AO INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT, FOR CONCEALING THE PARTICULARS OF INCOME AND LEVIED A M INIMUM PENALTY OF RS.6,14,070/-, WHICH IS EQUIVALENT TO THE TAX SO UGHT TO BE EVADED. 10. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN A PPEAL BEFORE THE CIT(A). 11. THE CIT(A) OBSERVED THAT NOTICE U/S 148 OF THE ACT WAS ISSUED AND THE ASSESSMENT WAS MADE BY THE AO AT THE ENTIRE AMOUNT OF RS. 19,11,000/- AS NO PROOF REGARDING THE SOURCE OF INC OME WAS MADE AVAILABLE. SUBSEQUENTLY, PENALTY WAS ALSO IMPOSED A S THERE WAS O EVIDENCE IN SUPPORT OF THE SOURCE. THE CIT(A) FURTH ER HELD THAT IN THE ABSENCE OF ANY EVIDENCE TO EXPLAIN THE DEPOSITS , THE ASSESSEE ITA NOS. 2085 & 2086/HYD/2011 SHRI PRAVEEN VENEGALLA 4 SHOULD HAVE MADE THE DEPOSITS FROM UNACCOUNTED SOUR CES AND, THEREFORE, CONFIRMED THE ORDER OF PENALTY U/S 271(1 )(C) OF THE ACT. 12. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 13. WE HAVE HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PERUSED THE RECORD. SINCE WE HAVE REMITTED THE MATTER BACK TO THE FILE OF THE CIT(A) IN QUANTUM APPEAL BEING ITA NO. 2085/HYD /11 (SUPRA), WE REMIT THE PENALTY MATTER ALSO TO THE FILE OF THE CIT(A) WITH A DIRECTION TO DECIDE THE SAME ON THE OUTCOME OF THE QUANTUM APPEAL TO BE PASSED BY HIM. 14. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSE. 15. TO SUM UP, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 20 TH DECEMBER, 2012. SD/- SD/- (CHANDRA POOJARI) (ASHA VIJAYARAGH AVAN) ACCOUNTANT MEMBER JUDICIAL MEMBE R HYDERABAD, DATED: 20 TH DECEMBER, 2012. KV COPY TO:- 1) SHRI PRAVEEN VENEGALLA, VILLA NO. 6, LUMBINI SPRING S, KONDAPUR, GACHHIBOWLI, HYDERABAD 500 032. 2) ACIT, INTERNATIONAL TAXATION II, IT TOWES, HYDERA BAD. 3) THE CIT (A)-V, HYDERABAD 4) THE DIT(INTERNATIONAL TAXATION), HYDERABAD. 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDE RABAD. ITA NOS. 2085 & 2086/HYD/2011 SHRI PRAVEEN VENEGALLA 5