Nookala Nagabhavani, Machilipatnam V. ITO, Machilipatnam

ITA 26/VIZ/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7115 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 year(s) 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 06-12-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 12-01-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D S SUNDER SINGH
• Assessee Lawyers: Y SURYACHANDRA RAO
• Keywords: Additional evidence
• Section: 142(1); 144

Judgement Text

ITA NO 26 OF 2009 NUKALA NAGA BHAVANI MACHILIPATNAM PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER ITA NO.26/VIZAG/2009 ASSESSMENT YEAR: 2005-06 NUKALA NAGA BHAVANI, MACHILIPATNAM VS. ITO WARD-1, MACHILIPATNAM (APPELLANT) PAN NO: ADMPN 1701 C (RESPONDENT) APPELLANT BY: SHRI Y. SURYACHANDRA RAO, CA RESPONDENT BY: SHRI D.S.SUNDER SINGH, SR.DR ORDER PER SHRI B. R. BASKARAN, ACCOUNTANT MEMBER: THE APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 11.7.2008 PASSED BY LEARNED CIT(A), VIJAYAWADA AND IT RELATES TO THE ASSESSMENT YEAR 200506. 2. THE APPEAL IS BARRED BY LIMITATION BY 93 DAYS. T HE REGULAR AUTHORISED REPRESENTATIVE OF THE ASSESSEE SHRI K. SIVA RAMA KU MAR, CHARTERED ACCOUNTANT, HAS FILED AN AFFIDAVIT TO THE EFFECT TH AT THE APPEAL PAPERS WERE ORIGINALLY SENT TO THE OLD ADDRESS OF THE ITAT AND HENCE THE SAME WAS RETURNED BACK UN-SERVED. AFTER THAT, HE HAS SENT T HE APPEAL PAPERS TO THE CORRECT ADDRESS AND THIS PROCESS HAS CAUSED A DELAY OF 93 DAYS. THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT DATED 20.12.20 08 WHEREIN SHE HAS STATED THAT THE CIT (A) ORDER WAS SERVED ON HER AUT HORISED REPRESENTATIVE ON 12.8.2008 AND THE APPEAL PAPERS COULD NOT BE PRE PARED AS SHE WAS WORKING IN USA AT THAT TIME. ACCORDINGLY IT IS PRAY ED THAT THE DELAY IN FILING THE APPEAL BE CONDONED. HAVING REGARD TO THE SUBMI SSIONS, WE CONDONE THE DELAY AND ADMIT THE APPEAL. 3. IN THIS APPEAL, THE ASSESSEE IS ASSAILING THE DEC ISION OF THE LEARNED CIT (A) IN CONFIRMING THE ADDITION OF RS.1,51,200/- MADE BY THE ASSESSING OFFICER. ITA NO 26 OF 2009 NUKALA NAGA BHAVANI MACHILIPATNAM PAGE 2 OF 4 4. THE FACTS RELATING TO THE ISSUE ARE STATED IN BR IEF. ON THE RECEIPT OF INFORMATION THAT THE ASSESSEE HAS MADE INVESTMENTS IN TATA CONSULTANCY SERVICES TO THE TUNE OF RS.1,51,200/- ON 19.8.2004, THE ASSESSING OFFICER ISSUED A NOTICE UNDER SECTION 142(1) OF THE ACT TO THE ASSESSEE ON 22.8.2007, REQUESTING HER TO FILE HER RETURN OF INC OME FOR THE ASSESSMENT YEAR 2005-06. SINCE THERE WAS NO COMPLIANCE FROM H ER TO THAT NOTICE, LETTERS WERE ISSUED ON 5.11.2007 AND AGAIN ON 6.12. 2007. SINCE THERE WAS NO RESPONSE/COMPLIANCE, THE ASSESSING OFFICER COMPL ETED THE ASSESSMENT TO THE BEST OF HIS JUDGMENT UNDER SECTION 144 OF THE A CT BY DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS.1,51,200/-. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LEARNED CIT (A). THE LE ARNED CIT (A) FIXED THE HEARING ON 30.5.2008. HOWEVER, THE REGULAR AUTHORIS ED REPRESENTATIVE OF THE ASSESSEE SOUGHT ADJOURNMENT FOR TWO WEEKS. ACCO RDINGLY THE LEARNED CIT (A) ADJOURNED THE CASE TO 30.6.2008 AND THEREAF TER AGAIN TO 10.7.2008. THERE WAS NO RESPONSE FROM THE AUTHORISED REPRESENT ATIVE OF THE ASSESSEE. IN THE ABSENCE OF ANY SUBMISSION OR EVIDENCE IN SUPP ORT OF THE CONTENTIONS MADE IN THE APPEAL, THE LEARNED CIT (A) DISMISSED T HE APPEAL OF THE ASSESSEE BY CONFIRMING THE ADDITION MADE BY THE ASS ESSING OFFICER. HENCE THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE PRESENT LEARNED AUTHORISED REPRESENTATIVE AP PEARING FOR THE ASSESSEE BEFORE US SUBMITTED THAT THE ASSESSEE IS R ESIDING IN USA AND HENCE SHE COULD NOT COMPLY WITH THE NOTICES ISSUED BY TAX AUTHORITIES, SINCE THEY WERE NOT RECEIVED BY HER. HE FURTHER SUBMITTE D THAT THE ASSESSEE IS HAVING SUFFICIENT SOURCES FOR MAKING THE IMPUGNED I NVESTMENT AND THE COPIES OF THE SAME HAVE BEEN FILED BEFORE THE TRIBU NAL AS ADDITIONAL EVIDENCES. HE ACCORDINGLY PRAYED THAT THE ADDITIONA L EVIDENCES BE ADMITTED AND THE MATTER MAY BE SET ASIDE TO THE FILE OF ASSE SSING OFFICER FOR FRESH CONSIDERATION. HOWEVER, THE LEARNED DEPARTMENTAL RE PRESENTATIVE STRONGLY OBJECTED TO THE SAID PLEA. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. AS POINTED OUT EARLIER, THE ASSESSEE AND HER REGULAR A UTHORISED REPRESENTATIVE HAS ALL ALONG BEEN NOT COOPERATING WITH THE TAX AUT HORITIES. THERE IS ALSO A ITA NO 26 OF 2009 NUKALA NAGA BHAVANI MACHILIPATNAM PAGE 3 OF 4 DELAY OF 93 DAYS IN FILING THE APPEAL BEFORE THE IT AT. WE ALSO NOTICE THAT THE APPEAL OF THE ASSESSEE WAS ORIGINALLY DISMISSED ON 2.9.2009 EX-PARTE, QUA THE ASSESSEE AND ON A PETITION FILED BY THE ASS ESSEE; THE SAID ORDER WAS RECALLED ON 27.4.2010. THUS THERE IS NO PROPER RES PONSE BEFORE THE TRIBUNAL ALSO. 7. WE NOTICE FROM THE COPIES OF APPEAL PAPERS F ILED BEFORE THE LEARNED CIT (A) THAT THE ASSESSEE HAS GIVEN THE ADDRESS OF HER REGULAR AUTHORISED REPRESENTATIVE FOR SERVING NOTICES OF HEARING. ACCO RDINGLY THE LEARNED CIT (A) HAS SERVED THE NOTICES TO THE REGULAR AUTHORISE D REPRESENTATIVE OF THE ASSESSEE. HOWEVER, THERE WAS NO COMPLIANCE EITHER BY THE ASSESSEE OR BY THE AUTHORISED REPRESENTATIVE TO THE SAID NOTICES. WHEN THE REGULAR AUTHORISED REPRESENTATIVE OF THE ASSESSEE WAS AUTHO RISED TO RECEIVE THE NOTICES AND TO APPEAR FOR THE HEARING, IT IS HIS RE SPONSIBILITY TO DEAL WITH THE APPEAL FILED BY THE ASSESSEE. IN THIS KIND OF SITU ATION, THE FACT THAT THE ASSESSEE WAS RESIDING IN USA SHALL NOT MAKE ANY DIF FERENCE. IT IS TO BE NOTED HERE THAT THE REGULAR AUTHORISED REPRESENTATI VE OF THE ASSESSEE HAS NOT CITED ANY REASON FOR HIS FAILURE IN NOT PROSECU TING THE APPEAL BEFORE LEARNED CIT(A). WE ALSO NOTICE THAT THE VERY SAME CHARTERED ACCOUNTANT HAS GIVEN AN AFFIDAVIT FOR RECALLING THE ORDER DATE D 02-9-2009 PASSED BY THIS BENCH, REFERRED (SUPRA). HENCE, THE FAILURE TO PRO SECUTE THE APPEAL BEFORE LEARNED CIT(A) IS DUE TO THE FAULT OF THE AUTHORISE D REPRESENTATIVE OF THE ASSESSEE. 8. AS PER RULE 29 OF THE APPELLATE TRIBUNAL RUL ES, 1963, THE ADDITIONAL EVIDENCES CAN BE ADMITTED, INTER ALIA, FOR THE REAS ON THAT THE INCOME TAX AUTHORITIES HAVE DECIDED THE CASE WITHOUT GIVING SU FFICIENT OPPORTUNITY TO THE ASSESSEE TO ADDUCE EVIDENCES. FROM THE ELABORA TE DISCUSSIONS MADE ABOVE, ONE CAN NOTICE THAT THE TAX AUTHORITIES HAVE GIVEN SUFFICIENT OPPORTUNITIES, BUT THERE WAS NO COMPLIANCE EITHER F ROM THE ASSESSEE OR HER AUTHORISED REPRESENTATIVE. IN THESE CIRCUMSTANCES, WE DO NOT FIND ANY PLAUSIBLE REASON FOR ADMITTING THE ADDITIONAL EVIDE NCES. IN THESE CIRCUMSTANCES, WE ARE CONSTRAINED TO DECIDE THE APP EAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. ON A CAREFUL PERUSAL OF THE ORDER OF LEARNED ITA NO 26 OF 2009 NUKALA NAGA BHAVANI MACHILIPATNAM PAGE 4 OF 4 CIT(A), WE NOTICE THAT THE NO MATERIAL WAS FILED BE FORE THE FIRST APPELLATE AUTHORITY TO SUBSTANTIATE THE CONTENTIONS MADE IN T HE APPEAL AND HENCE HE WAS CONSTRAINED TO DISMISS THE APPEAL OF THE ASSESS EE. HENCE, WE DO NOT FIND ANY INFIRMITY IN HIS DECISION. ACCORDINGLY WE UPHOLD THE ORDER OF LEARNED CIT(A). 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISM ISSED. PRONOUNCED IN THE OPEN COURT ON 9 TH MARCH, 2011. SD/- SD/- (SUNIL KUMAR YADAV) (B R BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PVV/SPS VISAKHAPATNAM, DATE: 09-03-2011 COPY TO 1 SMT. NUKALA NAGA BHAVANI, C/O NUKALA RADHA KRISHN A MURTHY, 14/570 DRIVERS COLONY, BEHIND APHB COLONY, MACHILIPATNAM 2 THE ITO WARD-1, MACHILIPATNAM 521002 3 4. THE CIT VIJAYAWADA THE CIT(A), VIJAYAWADA 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM