M/s Jayanthi Properties (Pvt.), Vijayawada V. THE DCIT, Vijayawada

ITA 209/VIZ/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5146 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 3 year(s) 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 28-05-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DEBA KUMAR SONAWAL
• Keywords: Opportunity of being heard
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , HONBLE ACCOUNTANT MEMBER ITA NO. 2 09 / VIZ /201 5 (ASST. YEAR : 20 1 0 - 11 ) M/S. JAYATHI PROPERTIES (P) LTD., D.NO.36 - 11 - 7, SANTHINAGAR, 1 ST LANE, MOGHALRAJPURAM, VIJAYAWADA. V S . D CIT, CIRCLE - 2 (1), VIJAYAWADA. PAN NO. AABCJ 5079 Q (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G.V.N. HARI , ADV OCATE . DEPARTMENT BY : SHRI DEBA KUMAR SONAWAL, CIT DR DATE OF HEARING : 23 / 0 7 /201 8 . DATE OF PRONOUNCEMENT : 25 / 0 7 /201 8 . O R D E R PER V. DURGA RAO, JUDICIAL MEMBER TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX , VIJAYAWADA , DATED 27 /0 3 /201 5 FOR THE ASSESSMENT YEAR 20 1 0 - 11 . 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE M/S. JAYA THI PROPERTIES PVT. LTD. IS ENGAGED IN THE BUSINESS OF REAL ESTATE, FILED ITS RETURN OF INCOME ADMITTING TOTAL INCOME OF RS. 83,152/ - . THE RETURN FILED BY THE ASSESSEE WAS PROCESSED UNDER SECTION 143(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER 2 ITA NO. 209/VIZ/2015 ( M/S. JAYATHI PROERTIES (P) LTD. ) REFERRED TO AS 'ACT'). THEREAFTER, AFTER FOLL O W I NG DUE PROCEDURE, ASSESSMENT WAS COMPLETE D UNDER SECTION 143(3) ON 26/03/2013 DETERMI NI NG TOTAL INCOME OF RS. 12,85,740/ - BY MAKING DISALLOWANCE OF REGISTRATION CHARGES OF RS. 1,97,185/ - AND DEVELOPMENT CHARGES OF RS. 10,05,400/ - . THE COMMISSIONER ON EXAMINATION OF RECORD FOUND THAT THE ASSESSING OFFICER HAS NOT EXAMINED CERTAIN ISSUES, HENCE, ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER CONSIDERED TO BE ERRONEOUS AND SO FAR AS PREJUDICIAL TO THE INTEREST OF THE REV E NUE WITHIN THE SCOPE OF SECTION 263 OF THE ACT. THEREFORE, HE ISSUE D A SHOW - CAUSE NOTICE UNDER SECTION 263 , DATED 25/01/2015 TO THE ASSESSEE CALLING FOR ITS OBJECTI O NS. IN RESPONSE TO THAT, ASSESSEE HAS FILED A DETAILED REPLY . LD. COMMISSIONER AFTER CONSIDERING THE REPLY GIVEN BY THE ASSESSEE, SET ASIDE THE ORDER PASSED BY THE ASSESSING OFFICER DATED 26/03/2013 AND DIRECTED THE ASSESSING OFFICER TO REDO THE ASSESSMENT ON THE ISSUES DISCUSSED IN HIS ORDER IN ACCORDANCE WITH LAW AFTER AFFORDING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 3 . ON BEING AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE TRIBUNAL. 4 . LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSING OFFICER HAS COMPLETED ASSESSMENT UNDER SECTION 143(3) 3 ITA NO. 209/VIZ/2015 ( M/S. JAYATHI PROERTIES (P) LTD. ) OF THE ACT AFTER CONSIDERING ALL THE DETAILS, THEREFORE, L D.COMMISSIONER WRONGLY EXERCISED HIS JURISDICTION UNDER SECTION 263 OF THE ACT AND SUBMITTED THAT THE ORDER PASSED BY THE COMMISSIONER IS BEYOND OF HIS JURISDICTION AND THEREFORE, SAME MAY BE QUASHED. 5. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT ASSESSING OFFICER THOUGH , ORDER PASSED UNDER SECTION 143(3) , NOT EXAMINED THE ISSUES IDENTIFIED BY THE LD.COMMISSIONER , THEREFORE, LD. COMMISSIONER RIGHTLY SET ASIDE THE ORDER PASSED BY THE ASSESSING OFFICER, HENCE, S A ME MAY BE UPHELD. 6 . WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH ORDERS OF THE AUTHORITIES BELOW. 7 . THE ASSESSEE IS ENGAGED IN THE BUSINESS OF REAL ESTATE, FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2011 - 12 BY ADMITTING INCO ME OF RS. 83,152/ - . THE ASSESSING OFFICER COMPLETED THE ASSESSMENT BY DETERMINING TOTAL INCOME OF RS. 12,85,740/ - BY DISALLOWING REGISTRATION CHARGES OF RS.1, 97,185/ - , DEVELOPMENT CHARGES OF RS. 10,05,400/ - . THEREAFTER, LD. COMMISSIONER EXAMINED THE RECORD AND FOUND THAT THE ASSESSING OFFICER NOT EXAMINED THE ISSUE S INVOLVED IN THE 4 ITA NO. 209/VIZ/2015 ( M/S. JAYATHI PROERTIES (P) LTD. ) ASSESSMENT AND THEREFORE, CONSIDERED THE ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE AND ISSUED A SHOW C AUSE NOTICE TO THE ASSESSEE . AFTER CONSIDERING THE ASSESSEES REPLY, SET ASIDE THE ORDER PASSED BY THE ASSESSING OFFICER AND DIRECTED THE ASSESSING OFFICER TO REDO THE ASSESSMENT AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 8 . WE HAVE GONE THROUGH THE ASSESSMENT ORDER . WE FIND THAT THERE IS NO OBSERVATION OF THE ASSESSING OFFICER IN RESPECT OF THE ISSUES IDENTIFIED BY THE LD. COMMISSIONER , WHICH ARE EXAMINED BY THE ASSESSING OFFICER. WHEN WE POINTED OUT LD. COUNSEL FOR THE ASS ESSEE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS WHETHER ASSESSING OFFICER HAS ASKED ANY QUESTION OR ANY ENQUIRY OR CALLED ANY DETAILS IN RESPECT OF THE ISSUES POINTED OUT BY THE LD.COMMISSIONER, HE IS NOT ABLE TO ANSWER THE SAME. WE FIND THAT THE ASSESSING OFFICER WITHOUT EXAMINING VARIOUS ISSUES IDENTIFIED BY THE LD. COMMISSIONER , SIMPLY ASSESSMENT IS COMPLETED UNDER SECTION 143(3) OF THE ACT. WE FIND THAT LD. COMMISSIONER RIGHTLY EXERCISED HIS J URISDICTION UNDER SECTION 263 OF THE ACT AND SET ASIDE THE ASSESSMENT ORDER AND DIRECTED THE ASSESSING OFFICER TO REDO THE ASSESSMENT IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. WE FIND NO 5 ITA NO. 209/VIZ/2015 ( M/S. JAYATHI PROERTIES (P) LTD. ) INFIRMITY IN THE ORDER PASSED BY THE LD. CIT(A). THUS, THIS APPEAL FILED BY THE ASSESSEE IS DISMISSED. 9. IN THE RESULT, APPEAL FILED BY THE BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON TH IS 2 5 T H DAY OF JULY , 201 8 . S D / - S D / - ( D.S. SUNDER SINGH ) ( V. DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 2 5 T H JULY , 201 8 . VR/ - COPY TO: 1. THE ASSESSEE M/S. JAYATHI PROPERTIES (P) LTD., D.NO.36 - 11 - 7,SANTHINAGAR, 1 ST LANE, MOGHALRAJPURAM, VIJAYAWADA. 2. THE REVENUE DCIT, CIRCLE - 2(1), VIJAYAWADA. 3. LD. CIT, VIJAYAWADA. 4. THE D.R . , VISAKHAPATNAM. 5. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.