Joginpally Gayatri, Hyderabad V. Asst. Commissioner of Income Tax, Central Circle-1(1), Hyderabad

ITA 2232/Hyd/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0626 (ITAT-HYDERABAD)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-02-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 26-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: G VENKATESWARLU
• Keywords: Search and seizure; Opportunity of being heard; Additional evidence; Assessment record
• Section: 153A; 68; 132; 154; 139

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A , HYDERABAD BEFORE S MT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S . RIFAUR RAHMAN , ACCOUNTANT MEMBER ITA NO. 2 2 32 /HYD/201 7 ASSESSMENT YEAR: 20 1 0 - 11 JOGINAPALY GAYATRI, HYDERABAD. PAN A GBPJ 6040J VS. ASST. COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE 1(1), HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G. VENKATESWARLU REVENUE BY : SHRI PRABHAT KUMAR GUPTA DATE OF HEARING : 04 - 0 9 - 201 8 DATE OF PRONOUNCEMENT : 1 2 - 0 9 - 201 8 O R D E R PER S . RIFAUR RAHMAN, A .M.: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF DATED 18 / 10 / 201 7 OF CIT(A) 11 , HYDERABAD, FOR AY 20 1 0 - 11 PASSED U/S 154 OF THE INCOME - TAX ACT, 1961 (IN SHORT THE ACT) . 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE , AN INDIVIDUAL, FILED HER ORIGINAL RETURN OF INCOME ON 20/12/2011 ADMITTING AN INCOME OF RS. 8,84,040/ - . A SEARCH AND SEIZURE OPERATION U/S 132 OF THE ACT WAS CONDUCTED AT THE RESIDENTIAL PREMISES OF THE ASSESSEE ON 10/09/2009. ACCORDINGLY, NOTICES U/S 153A WERE ISSUED AND SERVED ON THE ASSESSEE TO FILE RETURN OF INCOME FOR AYS 2004 - 05 TO 2009 - 10. THE CURRENT AY BEING OUT SIDE THE ABOVE NOTICE, NORMAL PROVISIONS OF SECTION 139 WERE APPLIED AND ASSESSED ACCORDINGLY. 2.1 DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE HAS SHOWN A LOAN OF RS. 22 LAKHS IN HER STATEMENT OF AFFAIRS. ASSESSEE FILED CONFIRMATION LETTERS FROM MADHU R KADRI. HOWEVER, THE AO NOTICED THAT CONFIRMATION DOES NOT CONTAIN ANY SIGNATURE OR MODE OF 2 ITA NO. 2 2 32 /HYD/201 7 JOGINAPALY GAYATRI, HYD. PAYMENT AND PAN DETAILS. THEREFORE, THE AO ADDED THE ABOVE UNSECURED LOAN OF RS. 22 LAKHS U/S 68 AS INCOME OF THE ASSESSEE. 3. AGGRIEVED BY THE ORDER OF AO , THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) . 4. IN THE ORIGINAL ORDER PASSED ON 27/06/2017, THE CIT(A) - 11, OBSERVED AS UNDER: 'IT IS SEEN THAT THE BANK STATEMENT REFERRED TO AND A CONFIRMATION LETTER ARE ALREADY PART OF THE ASSESSMENT RECORD. THE RE IS THEREFORE NO ELEMENT OF ADDITIONAL EVIDENCE FOR CONSIDERATION HERE. IT IS SEEN FROM THE ORDER DT.30.12.2011 IN THE CASE OF THE ASSESSEE'S HUSBAND SRI. J. VAMSHIDHAR RAO PASSED U/S.143(3) THAT THIS SUM OF RS.22,00,000 1 - HAS INDEED BEEN BROUGHT TO TAX AS A PART OF THE ADDITION OF RS.23,00,000 / - MADE U/S .68. IT IS SEEN FROM AN ORDER DT.05.08.20 13 PASSED BY THE CIT(A) - L, HYDERABAD IN ITA NO.208 & 213 TO 218 / CC - 1/1 1 - 12 IN THE CASE OF SRI. J. VAMSHIDHAR RAO THAT THIS ADDITION OF RS.22,00,000 / - STANDS CONF IRMED VIDE PARA NO.14.1. PERUSAL OF A COMMON ORDER DT.08.01.2014 PASSED BY THE ITAT IN THE CASE OF THIS ASSESSEE WOULD SUGGEST THAT NO APPEAL HAS BEEN FILED BY THE ASSESSEE IN THIS MATTER. THE ONLY APPEAL PERTAINING TO A.Y - 2010 - 11 IN THE CASE OF SRI. J. V A M S HIDHAR RAO DECIDED BY THE HON'BLE I TAT VIDE ITS ORDER IN ITA NO. 1439/HYD/2013 IS A DEPARTMENTAL APPEAL. IN THE CIRCUMSTANCES THE CONTENTION OF THE LD. A.R. THAT THIS RECEIPT IN THE JOINT ACCOUNT HAS ALREADY SUFFERED TAX IN THE HANDS OF THE ASSESSEE'S H USBAND IS FACTUALLY CORRECT. BEING SO, THE FACTS NOTICED BY THE AO CANNOT MAKE OUT A CASE FOR ITS ADDITION ONCE AGAIN IN THE HANDS OF THE ASSESSEE. THE ADDITION OF RS. 22,00,000/ - IN THE CASE OF THE ASSESSEE IS THEREFORE DIRECTED FOR DELETION. 5. SUBSEQUE NTLY, AO FILED MISCELLANEOUS APPLICATION U/S 154 AND BROUGHT TO THE NOTICE OF THE CIT(A) THAT LOAN TAKEN BY THE ASSESSEE AND HER HUSBAND ARE TWO DIFFERENT LOANS AND ACCORDINGLY, BOTH OF THEM FILED CONFIRMATION LETTERS FROM THE RESPECTIVE CREDITORS. SINCE T HE CIT(A) IN THE ORIGINAL ORDER DELETED THE ADDITION CONSIDERING THE FACT THAT THE ADDITION MADE IN THE HANDS OF ASSESSEES HUSBAND SHRI J. VAMSHIDHAR RAO WILL AMOUNT TO DOUBLE TAXATION. 3 ITA NO. 2 2 32 /HYD/201 7 JOGINAPALY GAYATRI, HYD. 5.1 ACCORDINGLY, LD. CIT(A) PASSED THE PRESENT ORDER U/S 154 RECTIFY ING THE MISTAKE APPARENT ON RECORD AND CONFIRMED THE ADDITION U/S 68 IN THE HANDS OF THE ASSESSEE. 6. AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US RAISING THE FOLLOWING GROUNDS OF APPEAL: 1. THE ORDER OF THE LEARNED CIT(A) IS ERRONEOUS ON BOTH FACTS AND IN LAW. 2. THE LEARNED CIT(A) GRIEVOUSLY ERR ED IN PASSING THE IMPUGNED ORDER IN THE GUISE OF RECTIFICATION U/S 154 WHILE HE HAS ACTUALLY REVIEWED THE DECISION ALREADY TAKEN, A POWER NOT VESTED IN HIM. 3. THE LEARNED CIT(A) OUGHT TO HAVE NOTICED THAT THE APPELLATE ORDER DATED 27 - 6 - 2017 WAS PASSED AF TER DUE CONSIDERATION OF THE RELEVANT FACTS. THERE WAS NO ERROR ON THE FACE OF THE RECORD WHICH CALLED FOR RECTIFICATION. THEREFORE, HIS ORDER IS ERRONEOUS. 4. THE LEARNED CIT(A) HAS ERRONEOUSLY RECTIFIED THE ORDER STATING THAT HE HAS THE POWER TO RECTIF Y HIS ORDER ARISING OUT OF ERRORS APPARENT FROM RECORD WITHOUT SPECIFYING THE ERROR AND STATING HOW IT IS APPARENT AND WITHOUT MEETING THE OBJECTIONS FILED BY THE APPELLANT. 5. ANY OTHER GROUND(S) THAT MAY BE URGED AT THE TIME OF HEARING. 7. CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE NOTICE THAT CIT(A) HAS CONSIDERED THE ADDITIONAL EVIDENCE SUBMITTED BEFORE HIM IN THE ORIGINAL APPEAL PROCEEDINGS AND THE SAME WAS PART OF THE ORDER PASSED U/S 250(6) OF THE ACT. HOWEVER, HE CONS IDERED THE ADDITION MADE IN THE HANDS OF THE ASSESSEE WILL AMOUNT TO DOUBLE TAXATION CONSIDERING THE FACT THAT SIMILAR ADDITION WAS MADE IN THE HANDS OF ASSESSEES HUSBAND. HOWEVER, WHEN THE AO BROUGHT TO THE NOTICE OF THE CIT(A) THAT BOTH THE LOAN TRANSAC TIONS ARE INDEPENDENT IN NATURE, CIT(A) RECTIFIED THE MISTAKE, HOWEVER, FAILED TO APPRECIATE THE ADDITIONAL EVIDENCE SUBMITTED BY THE ASSESSEE IN THE ORIGINAL APPEAL PROCEEDINGS. NOW, LD. AR BROUGHT TO OUR NOTICE CONFIRMATION LETTER FROM THE CREDITOR AND R ELEVANT BANK DETAILS TO INDICATE THAT LOAN TRANSACTION WAS ROUTED THROUGH BANKING CHANNEL. THEREFORE, IN OUR CONSIDERED VIEW, LD. CIT(A) HAS NOT 4 ITA NO. 2 2 32 /HYD/201 7 JOGINAPALY GAYATRI, HYD. CONSIDERED THE ADDITIONAL EVIDENCE, WHICH WAS SUBMITTED IN THE ORIGINAL APPEAL PROCEEDINGS. HENCE, WE REMIT THI S ISSUE BACK TO THE FILE OF CIT(A) TO CONSIDER THE ADDITIONAL EVIDENCE AND PASS APPROPRIATE ORDER AFTER VERIFICATION OF THE DETAILS SUBMITTED AND IN ACCORDANCE WITH LAW AFTER PROVIDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE MATTER. 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 12 TH SEPTEMBER , 2018. SD/ - SD/ - ( P. MADHAVI DEVI ) (S . RIFAUR RAHMAN ) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED: 12 TH SEPTEMBER , 2 018. KV COPY TO: - 1) JOGINPALLY GAYATRI, 6 - 3 - 248/3, ROAD NO. 1, BANJARA HILLS, HYDERABAD 500 034 2) AC IT, CENTRAL CIRCLE 1 ( 1 ), HYD. 3) CIT(A) 11 , HYDERABAD. 4) PR. CIT (CENTRAL), HYD . 5 ) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDERABAD. 6 ) GUARD FILE