Pattela Srinivasa Rao, Vijayawada V. THE ITO, Vijayawada

ITA 292/VIZ/2015

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0247 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 08-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Application of stay
• Section: 143(3); 263

Judgement Text

ITA NO.292/VIZAGT/2015 SRI PATTELA SRINIVASA RAO, VIJAYAWADA 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . . . . , ,, , . . . . , , , , % % % % BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTANT MEMBER . .. ./ // / I.T.A.NO. 292/VIZAG/2015 ( / ASSESSMENT YEAR : 2009-10 ) SRI PATTELA SRINIVASA RAO VIJAYAWADA VS. ITO WARD-3(2) VIJAYAWADA [ PAN: AJGPP 9740D ] (, , , , / APPELLANT) (-., -., -., -., / RESPONDENT ) , / / APPELLANT BY : SHRI C. SUBRAHMANYAM, AR -., / / RESPONDENT BY : SHRI M.N. MURTHY NAIK, DR / 3 / DATE OF HEARING : 29.9.2015 / 3 / DATE OF PRONOUNCEMENT : 30.9.2015 / O R D E R PER V. DURGA RAO, JUDICIAL MEMBER: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER OF CIT(A), VIJAYAWADA DATED 29.5.2015 FOR THE ASSESSMENT YEAR 2009-10. ITA NO.292/VIZAGT/2015 SRI PATTELA SRINIVASA RAO, VIJAYAWADA 2 2. THE FACTS ARE IN BRIEF THAT THE ASSESSEE IS AN I NDIVIDUAL IN THE BUSINESS OF RETAIL SALE OF FOREIGN MADE LIQUOR FILE D A RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION BY DECLARING TOTAL INC OME OF RS.6,97,470/-. THE RETURN FILED BY THE ASSESSEE WAS PROCESSED U/S 143(1) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED ACT). T HEREAFTER, AFTER FOLLOWING A DUE PROCEDURE, THE ASSESSMENT WAS COMPL ETED U/S 143(3) OF THE ACT BY DETERMINING TOTAL INCOME OF THE ASSESSEE AT RS.11,63,238/-. SUBSEQUENTLY, THE CIT BY EXERCISING HIS POWERS U/S 263 OF THE ACT ISSUED A NOTICE TO THE ASSESSEE AND THEREAFTER SET ASIDE T HE ORDER PASSED BY THE A.O. ON THE GROUND THAT THE ASSESSING OFFICER D ID NOT VERIFY MATERIALS ON RECORD AND ESTIMATED THE INCOME WITHOUT BASIS AN D DIRECTED THE ASSESSING OFFICER TO OBTAIN THE RELEVANT PARTICULAR S EXAMINED THEM AND DETERMINED THE ISSUE IN ACCORDANCE WITH LAW AFTER O FFERING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. CONSEQ UENT TO THE ORDERS PASSED BY THE LD. COMMISSIONER U/S 263 OF THE ACT, THE A.O. BY FOLLOWING THE DUE PROCESS ASSESSMENT WAS COMPLETED. 3. ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD. COMMISSIONER QUESTIONING THE ADDITIONS MADE BY THE A.O. THE LD. COMMISSIONER WITHOUT EXAMINING THE ISSUES ON MERIT, SIMPLY DISMI SSED THE APPEAL FILED BY THE ASSESSEE ON THE GROUND THAT NO APPEAL HAS BE EN FILED BY THE ITA NO.292/VIZAGT/2015 SRI PATTELA SRINIVASA RAO, VIJAYAWADA 3 ASSESSEE AGAINST THE ORDER PASSED BY THE COMMISSION ER U/S 263 OF THE ACT DATED 28.3.2014. 4. ON BEING AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE US. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. COM MISSIONER WHILE EXERCISING THE POWERS U/S 263 OF THE ACT SIMPLY SET ASIDE THE ORDER PASSED BY THE A.O. DIRECTED THE ASSESSING OFFICER T O REDO THE ASSESSMENT. THEREFORE, THE ASSESSEE HAVE A RIGHT T O FILE AN APPEAL AGAINST THE ORDER PASSED BY THE ASSESSING OFFICER A ND THE SAME CANNOT BE DENIED. 5. ON THE OTHER HAND, THE LD. D.R. RELIED ON THE OR DER PASSED BY THE LD. CIT(A). 6. WE HAVE HEARD BOTH THE SIDES, PERUSED THE RECORDS AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IN TH IS CASE, THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT. TH EREFORE, THE COMMISSIONER BY INVOKING SECTION 263 OF THE ACT, TH E ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT WAS SET ASIDE AND DIRE CTED THE ASSESSING OFFICER TO REDO THE ASSESSMENT AFRESH. THEREFORE, THE ASSESSEE HAVE AN EVERY RIGHT TO QUESTION THE ORDER PASSED BY THE ASS ESSING OFFICER. THEREFORE, THE LD. CIT(A) WITHOUT CONSIDERING THE A PPEAL FILED BY THE ASSESSEE ON MERITS BY REJECTING THE APPEAL ON THE G ROUND THAT ASSESSEE ITA NO.292/VIZAGT/2015 SRI PATTELA SRINIVASA RAO, VIJAYAWADA 4 FAILED TO QUESTION THE ORDER OF THE COMMISSIONER U/ S 263 OF THE ACT CANNOT BE SUSTAINED. WE THEREFORE, SET ASIDE THE O RDER PASSED BY THE CIT(A) AND REMIT THE MATTER BACK TO CIT(A) TO CONSI DER THE ISSUE ON MERITS AFTER BEING GIVEN REASONABLE OPPORTUNITY TO THE ASSESSEE. THUS, THIS APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR ST ATISTICAL PURPOSES. 7. IN SO FAR AS STAY APPLICATION FILED BY THE ASSES SEE IS CONCERNED, IN VIEW OF THE ORDER PASSED IN THE APPEAL FILED BY THE ASSESSEE, THE STAY APPLICATION FILED BY THE ASSESSEE IS INFRUCTUOUS, T HEREFORE, DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 30 TH SEPT15. SD/- SD/- ( (( ( . . . . ) ( ) ( ) ( ) ( . .. . ) )) ) ( (( ( G. MANJUNATHA) ( (( ( V. DURGA RAO ) )) ) / // / ACCOUNTANT MEMBER / // / JUDICIAL MEMBER /VISAKHAPATNAM: 6 / DATED : 30 TH SEPT15 VG/SPS / - 7 / COPY OF THE ORDER FORWARDED TO :8 1. , / THE APPELLANT SRI PATTELA SRINIVASA RAO, D.NO.77-22-12, PRAKASHNAGAR, PAYAKAPURAM, VIJAYAWADA-520015. 2. -., / THE RESPONDENT ITO WRAD-3(2), VIJAYAWADA 3. ; / THE CIT, VIJAYAWADA 4. ; () / THE CIT(A), VIJAYAWADA 5. -, , / // / DR, ITAT, VISAKHAPATNAM 6 . . . . / GUARD FILE / BY ORDER