Kolli Krishna, Visakhapatnam V. Income Tax Officer, Ward-1, Visakhapatnam

ITA 210/VIZ/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2662 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 21-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Assessee Lawyers: C KAMESWARA RAO
• Keywords: Condonation of delay; Set aside
• Section: 271(1)(c); 143(1); 144

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 S . 209 & 210 / VIZ /201 8 (ASST. YEAR : 20 11 - 12 ) KOLLI KRISHNA, 2 - 100, OLD POST OFFICE ROAD, BANJARI VILLAGE, SABBAVARAM, VISAKHAPATNAM. V S . IT O , WARD - 1, ANAKAPALLE . PAN NO. ATEPK 2172 J (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI C. KAMESWARA RAO - FCA . DEPARTMENT BY : SHRI SUMAN MALIK SR. DR DATE OF HEARING : 11 / 1 0 /201 8 . DATE OF PRONOUNCEMENT : 09 / 1 1 /201 8 . O R D E R PER V. DURGA RAO, JUDICIAL MEMBER TH E S E APPEAL S BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDER S OF COMMISSIONER OF INCOME TAX (APPEALS) - 9 , HYDERABAD , EACH DATED 27 /0 2 /201 8 FOR THE ASSESSMENT YEAR 20 11 - 12 . ITA NO.2 1 0/VIZ/2018 2. THESE APPEALS ARE BARRED BY LIMITATION BY 1 4 DAYS. THE ASSESSEE HAS FILED A PETITION ALONG WITH AN AFFIDAVIT FOR CONDONATION OF DELAY IN FILING THE APPEALS. WE FIND THAT THE REASONS MENTIONED IN THE AFFIDAVITS ARE SUFFICIENT FOR NON - FILING THE APPEALS IN TIME. THEREFORE, WE CONDONE THE DELAY IN FILING THE APPEAL S BY THE ASSESSEE AND ADMIT THE APPEAL S FOR HEARING . 2 ITA NO S . 209 & 210/VIZ/2018 ( KOLLI KRISHNA ) 3. FACTS OF THE CASE, IN BRIEF, ARE THAT ASSESSEE IS AN INDIVIDUAL CARRYING IN MANUFACTURING AND SALE OF BRICKS, FILED HIS RETURN OF INCOME BY ADMITTING TOTAL INCOME OF RS. 2,32,330/ - . THE RETURN FILED BY THE ASSESSEE WAS PROCESSED UNDER SECTION 143(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'ACT') . SUBSEQUENTLY, CASE WAS SELECTED FOR SCRUTINY UNDER CASS AND AFTER FOLLOWING DUE PROCEDURE, ASSESSMENT WAS COMPLETED UNDER S ECTION 144 OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS NOTICED THAT ASSESSEE IS MAINTAINING A BANK ACCOUNT WITH STATE BANK OF HYDERABAD , SABBAVARAM BRANCH, VISAKHAPATNAM . IT IS SEEN FROM THE BANK ACCOUNT THAT THERE ARE CASH DEPOSITS/CREDITS TO THE TUNE OF RS.58,31,334/ - . THE ASSESSING OFFICER HAS ASKED THE ASSESSEE TO FURNISH THE SOURCE OF THE DEPOSITS , BUT ASSESSEE FAILED TO FILE ANY DETAILS NOR FILED ANY EXPLANATION, EVEN NOT APPEARED BEFORE HIM. THEREFORE, ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT BY CONSIDERING THE BALANCE AMOUNT OF RS . 24,1 7,509/ - (RS. 58,31,334 RS. 34,13,825) HAS BEEN TREATED AS INCOME FROM OTHER SOURCES AND COMPLETED THE ASSESSMENT . 4 . ON APPEAL, LD. CIT(A) GRANTED A PARTIAL R ELIEF OF RS. 40,000/ - AND PARTLY ALLOWED THE APPEAL OF THE ASSESSEE . 3 ITA NO S . 209 & 210/VIZ/2018 ( KOLLI KRISHNA ) 5 . ON BEING AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE TRIBUNAL. 6 . LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSING OFFICER HAS MADE ADDITION OF RS. 24, 1 7,509/ - WITHOUT CONSIDERING THE WITHDRAWAL S AND NOT GIVING PROPER OPPORTUNITY TO THE ASSESSEE , AND SUBMITTED THAT IN THE INTEREST OF JUSTICE, MATTER MAY BE REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION . 7 . ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE STRONGLY OPPOSED THE SUBMISSION FOR REMITTING THE MATTER BACK AND SUBMITTED THAT THE ORDERS OF THE AUTHORITIES BELOW MAY BE UPHELD. 8 . WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND ORDERS OF THE AUTHORITIES BELOW. 9 . THE ASSESSEE IS CARRYING ON BUSINESS IN MANUFACTURING AND SALE OF BRICKS, FILED HIS RETURN OF INCOME ADMITTING TOTAL INCOME OF RS. 2,32,330/ - BY TAKING INTO CONSIDERATION OF RS. 34,13,825 AS TOTAL TURNOVER FROM THE BUSINESS . HOWEVER, IT IS NOTICED BY THE ASSESSING OFFICER THAT THE ASSESSEE IS MAINTAINING BANK ACCOUNT WITH THE STATE BANK OF HYDERABAD AND ALSO NOTICED FROM THE BANK STATEMENT THAT THERE ARE CASH DEPOSITS / CREDITS TO THE TUNE OF RS.58,31,334/ - . DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF 4 ITA NO S . 209 & 210/VIZ/2018 ( KOLLI KRISHNA ) RS. 24,1 7,509/ - . THE ASSESSEE NEITHER APPEARED NOR FILED ANY DETAILS. THEREFORE, THE ASSESSING OFFICER BY TREATING THE ENTIRE AMOUNT OF 24,17,509/ - A S INCOME FROM OTHER SOURCES AND A CCORDINGLY, ASSESSMENT IS COMPLETED. ON APPEAL, LD. CIT(A) GRANTED PARTIAL RELI E F OF RS. 40,000/ - . BEFORE US, LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE IS AN ILLITERATE AND HE COULD NOT ATTEND BEFORE THE ASSESSING OFFICER DUE TO THE CIRCUMSTANCES BEYOND HIS CONTROL AND THEREFORE, HE IS NOT ABLE TO FILE THE DETAILS IN RES PECT OF RS. 24,57,509/ - AND PRAYED THAT ONE MORE OPPORTUNITY MAY BE GIVEN. BY CONSIDERING THE ENTIRE FACTS AND CI RCUMSTANCES OF THE CASE, WE ARE OF THE OPINION THAT THE ASSESSEE SHOULD BE GIVEN ONE MORE OPPORTUNITY TO SUBSTANTIATE HIS CASE BEFORE THE ASSESSING OFFICER. THEREFORE, WE SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE ASSESS ING OFFICER TO PASS THE ASSESSMENT ORDER IN DENOVO IN ACCORDANCE WITH LAW. WE ALSO DIRECT THE ASSESSEE TO APPEAR BEFORE THE ASSESSING OFFICER WITHOUT FAIL. THUS, THIS APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 209/VIZ/2018 10 . THE ASSESSING OFFICER IMPOSED PENALTY ON THE GROUND TH A T THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF DEPOSITS IN THE BANK ACCOUNT OF RS. 24,17,509/ - AND LEVIED PENALTY UNDER SECTION 5 ITA NO S . 209 & 210/VIZ/2018 ( KOLLI KRISHNA ) 271(1)(C) OF THE ACT. THE QUANTUM APPEAL HAS ALREADY BEEN SET ASIDE TO THE FILE OF ASSESSING OFFICER . T HEREFORE, THIS APPEAL HAS NO LEGS TO STAND , H OWEVER, IT IS OPEN TO THE ASSESSING OFFICER TO CONSIDER THIS ISSUE AFTER DECIDING THE QUANTUM APPEAL AS DISCUSSED ABOVE. ACCORDINGLY, THIS APPEAL FILED BY THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. 1 1 . IN THE RESULT, BOTH THE APPEAL S FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON TH IS 0 9 T H DAY OF NOV ., 201 8 . S D / - S D / - ( D.S. SUNDER SINGH ) ( V. DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 0 9 T H NOVEMBER , 201 8 . VR/ - COPY TO: 1. THE ASSESSEE KOLLI KRISHNA, 2 - 100, OLD POST OFFICE ROAD, BANJARI VILLAGE, SABBAVARAM, VISAKHAPATNAM. 2. THE REVENUE ITO, WARD - 1, ANAKAPALLE. 3. THE PR. CIT - 2, VISAKHAPATNAM. 4. THE CIT(A) - 9, HYDERABAD. 5. THE D.R . , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.