The ACIT Circle-2 Visakhapatnam, Visakhapatnam V. Sri Nukala Ramakrishna, Visakhapatnam

ITA 301/VIZ/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 85483 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 3 year(s) 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 10-12-2013
• Assessment Year: 2001-2002
• Appeal Filed On: 20-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: D MANOJ KUMAR
• Section: 148

Judgement Text

ITA NO.301/VIZAG/2011 NUKALA RAMAKRISHNA, ELURU IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER ITA NO.301/VIZAG/2011 ASSESSMENT YEAR : 2001 - 02 ACIT CENTRAL CIRCLE-2 VISAKHAPATNAM VS. NUKALA RAMAKRISHNA ELURU (APPELLANT) (RESPONDENT) PAN NO.AAQPN 1119E ASSESSEE BY: SHRI D. MANOJ KUMAR, DR REVENUE BY: SHRI C. SUBRAHMANYAM, AR DATE OF HEARING : 03.12.2014 DATE OF PRONOUNCEMENT : 03.12.2014 ORDER PER D. MANMOHAN, VICE PRESIDENT:- THIS APPEAL WAS ORIGINALLY DISPOSED OF BY THE BENC H VIDE ORDER DATED 13.12.2013, WHEREIN IT HAD TAKEN NOTE OF THE FACT T HAT SEARCH WAS CONDUCTED IN THE CASE OF ASSESSEE AS WELL AS OTHER GROUP CONC ERNS AND ON THE BASIS OF THE MATERIAL FOUND AS A RESULT OF SEARCH, THE REVEN UE NOTICED THAT THE ASSESSEE WAS INVOLVED IN AQUACULTURE DURING THE FIN ANCIAL YEAR 2000-01 BY TAKING LEASE OF FISH PONDS TO THE EXTENT OF 70 ACRE S FROM VARIOUS PERSONS; THE FAMILY MEMBERS HELD ABOUT 128 ACRES OF FISH PONDS B UT THE ASSESSEE HEREIN DID NOT DISCLOSE ANY INCOME ON AQUACULTURE. THEREF ORE, ASSESSING OFFICER ISSUED A NOTICE U/S 148 OF THE ACT AND COMPLETED TH E ASSESSMENT BY MAKING AN ADDITION OF RS.64,36,400/-. ON AN APPEAL FILED BY THE ASSESSEE, THE LD. CIT(A) DIRECTED THE AO TO CALCULATE PER ACRE RATE A T RS.20,000/- INSTEAD OF RS.47,000/- ESTIMATED BY THE AO. LD. CIT(A) ALSO D IRECTED THE AO TO REDUCE THE LEASE RENTALS PAID FOR THE YEAR FROM THE PROFIT . FURTHER AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE TRIBUNAL. IT DESERVES TO BE NOTICED THAT IDENTICAL ISSUE WAS CONSIDERED BY THE ITAT IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 2002-03 TO 2008-09, WHEREI N THE BENCH HAD TAKEN ITA NO.301/VIZAG/2011 NUKALA RAMAKRISHNA, ELURU 2 COGNIZANCE OF THE FACT THAT THE ESTIMATE OF PER ACR E INCOME IS ON HIGHER SIDE AND DIRECTED THE AO TO ESTIMATE THE PER ACRE INCOME APPROPRIATELY AND ALSO TO DEDUCT THE LEASE RENTALS. 2. HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL IN THE LIGHT OF THE DECISION OF THE ITAT FOR THE BLOCK PER IOD 2002-03 TO 2008-09, THE SAME PRINCIPLE WAS APPLIED FOR THE YEAR UNDER CONSI DERATION AND THE APPEAL FILED BY THE DEPARTMENT WAS DISMISSED VIDE ITS ORDE R DATED 13.12.2013. 3. THE REVENUE PREFERRED A MISCELLANEOUS PETITION O N THE GROUND THAT THE FOLLOWING ADDITIONAL GROUNDS WERE RAISED BEFORE THE TRIBUNAL BUT THEY WERE NOT TAKEN COGNISANCE OF AND THUS SUFFERS FROM MISTA KE APPARENT FROM RECORD. ADDITIONAL GROUNDS OF APPEAL IN THE CASE OF SRI NOO KALA RAMA KRISHNA, VISAKHAPATNAM FOR THE A.Y. 2001-02: I) THE LD. CIT(A) ERRED IN OVERLOOKING THE VITAL FACT OF SEIZURE OF A LEASE DOCUMENT EVIDENCING FISH CULTURE UNDERTAKEN BY THE ASSESSEE. II) THE LD. CIT(A) ERRED IN OVERLOOKING THE VITAL FACT THAT THE SAID LEASE DOCUMENT WAS SEIZED FROM THE RESIDENCE OF SRI MOTUR I KANAKESWARA RAO, A CLOSE ASSOCIATE OF THE ASSESSEE, WHO IS ALSO IN THE FISH BUSINESS. III) THE LD. CIT(A) ERRED IN OVERLOOKING THE FACT THAT T HE CONTENTS OF THE LEASE DOCUMENT WITH REFERENCE TO THE PERIOD AND THE QUANTUM ARE RELEVANT TO THE ASSESSMENT YEAR IN QUESTION. IV) THE LD. CIT(A) ERRED IN OVERLOOKING THE FACT THAT T HE AVERAGE YIELD OF FISH PER ACRE WAS ARRIVED AT BASING ON THE REPORTS OF REVENUE AUTHORITIES AND ALSO THE ASSESSEES STATEMENTS/ESTI MATES. V) THE LD. CIT(A) ERRED IN OVERLOOKING THE FACT THAT T HE PROFIT PER SALE OF LORRY LOAD OF FISH WAS WORKED OUT ON THE BASIS OF T HE ASSESSEES STATEMENT/ESTIMATE. VI) THE LD. CIT(A) ERRED IN OVERLOOKING THE FACT THAT T HE PROFIT PER SALE OF LORRY LOAD OF FISH WAS WORKED OUT TO RS.4,84,268/- WHICH WAS WITHIN THE BAND WIDTH OF VALUES AS STATED BY THE ASSESSEE IN HIS STATEMENT DATED 26.11.2007. ITA NO.301/VIZAG/2011 NUKALA RAMAKRISHNA, ELURU 3 VII) THE LD. CIT(A) ERRED IN OVERLOOKING THE FACT THAT T HE ANALYSIS MADE IN THE ASSESSMENT FOR ARRIVING AT THE AVERAGE SALE VAL UE OF EACH LORRY LOAD AT RS.4,54,634/- AS PER COMPUTATION (1) OF PAG E 6 OF THE ASSESSMENT ORDER COMPARED REASONABLY AND REALISTICA LLY WITH THE ULTIMATE COMPUTATION TAKEN AT RS.4,27,099/- AND AS SUCH CANNOT BE IGNORED. VIII) THE LD. CIT(A) ERRED IN OVERLOOKING THE FACT THAT T HE PROFIT AT FARM GATE/TANK WAS ARRIVED AFTER DULY CONSIDERING THE CO MPARABLE CASE OF SMT. MANDALAPU GANGA BHAVANI OF GUDIVADA. IX) THE LD. CIT(A) ERRED IN OVERLOOKING THE FACT THAT T HE PROFIT AT FARM GATE/TANK IN THE CASE OF THE ASSESSEE WAS ADOPTED A T 13.4% AFTER DUE CONSIDERATION OF THE VOLUME OF THE ASSESSEES BUSIN ESS AS COMPARED TO 8.4% ADOPTED FOR THE A.YRS. 2002-03 TO 2007-08. X) THE ABOVE GROUNDS (I) TO (VII) CLEARLY DEMONSTRATE THAT THE FACTS, EVIDENCES AND CONCLUSIONS DRAWN IN THE ASSESSMENT O RDER FOR ASSESSMENT YEAR 2001-02 ARE DISTINCT AND DISTINGUIS HABLE FROM THE FACTS, EVIDENCES AND CONCLUSIONS DRAWN IN THE ASSES SMENT ORDERS FOR ASSESSMENT YEARS 2002-03 TO 2007-08. XI) THE LD. CIT(A) ERRED IN BASING HIS ORDER UPON THE F INDINGS ON THE APPELLATE ORDER OF THE CIT(A)-1, HYDERABAD DATED 29 .11.2010 IN THE CASE OF THE SAME ASSESSEE FOR A.YRS 2002-03 TO 2007 -08 BY OVERLOOKING THE FACT THAT THE EVIDENCES AND CONCLUS IONS IN THE SAID APPELLATE ORDER ARE DISTINCT AND DISTINGUISHABLE ON FACTS AS AVAILABLE FOR THE A.Y. 2001-02. 4. THE BENCH NOTICED THAT THE ADDITIONAL GROUNDS WE RE NOT ON RECORD AND PRESUMABLY ON THAT COUNT, THE SAME WERE NOT TAKEN C OGNISANCE OF. THEREFORE, THE ORDER PASSED ON 13.12.2013 WAS RECAL LED FOR A LIMITED PURPOSE OF DISPOSING OF ADDITIONAL GROUNDS. THUS, THE MATT ER IS PLACED BEFORE THIS BENCH. 5. AT THE TIME OF HEARING, LD. D.R. SUBMITTED THAT THE LD. CIT(A) AS WELL AS ITAT ERRED IN FOLLOWING THE VIEW TAKEN IN THE AS SESSEES CASE FOR THE ASSESSMENT YEARS 2002-03 TO 2007-08 BY OVERLOOKING THE FACT THAT THE EVIDENCES AND CONCLUSIONS IN THE SAID APPELLATE ORD ER ARE DISTINGUISHABLE ON FACTS AS AVAILABLE FOR THE ASSESSMENT YEAR 2001-02. HE SUBMITTED THAT THE PROFIT PER SALE OF LORRY LOAD OF FISH WAS WORKED OU T TO RS.4,84,268/-, WHICH ITA NO.301/VIZAG/2011 NUKALA RAMAKRISHNA, ELURU 4 WAS WITHIN THE BAND WIDTH OF THE VALUES AS STATED B Y THE ASSESSEE IN HIS STATEMENT DATED 26.11.2007 AND AVERAGE YIELD OF FIS H PER ACRE WAS ARRIVED AT BY THE AO BASED ON THE REPORTS OF REVENUE AUTHORITI ES AND ALSO THE ASSESSEES STATEMENTS AND ESTIMATES. HE ALSO QUESTIONED THE M ETHOD FOLLOWED IN ESTIMATING THE INCOME, HAVING REGARD TO THE FACT TH AT LEASE DOCUMENTS EVIDENCING PISCICULTURE UNDERTAKEN BY THE ASSESSEE WERE PROPERLY ANALYSED IN THIS YEAR BUT THE LD. CIT(A) HAD NOT LOOKED AT THE ISSUE FROM THIS PERSPECTIVE. 6. AT THE TIME OF HEARING, LD. COUNSEL FILED BRIEF WRITTEN SUBMISSIONS ALONG WITH A CHART TO SUBMIT THAT THE FACTS AND CIR CUMSTANCES CONSIDERED BY THE ASSESSING OFFICER FOR THE SUBSEQUENT YEARS I.E. FOR THE BLOCK PERIOD ARE IDENTICAL TO THE FACTS WHICH WERE TAKEN INTO CONSID ERATION FOR THE ASSESSMENT YEAR 2001-02. HE HAS ALSO FURNISHED A CHART ESTIMA TING PROFIT IN REGULAR ASSESSMENTS AS WELL AS IN THE BLOCK YEARS ASSESSME NTS & THE RELEVANT WORKINGS, TO HIGHLIGHT THAT THE METHODOLOGY ADOPTED FOR THE ESTIMATE OF PROFIT IN BOTH CASES ARE SAME AND HENCE THE ORDER PASSED B Y THE APPELLATE TRIBUNAL AND THE REASONS GIVEN THEREOF ARE APPLICABLE ON ALL FOURS. HE THUS SUBMITTED THAT EVEN AFTER TAKING COGNISANCE OF THE ADDITIONAL GROUNDS, THERE CANNOT BE ANY CHANGE IN THE ULTIMATE OUTCOME SINCE THE LD. CI T(A) HAS ADOPTED AN APPROPRIATE METHODOLOGY IN ESTIMATING THE INCOME ON FISH TANKS PER ACRE. THE LD. CIT(A) IMPLIEDLY HAD TAKEN COGNISANCE OF AL L THE FACTS WHICH WERE STATED IN THE ADDITIONAL GROUNDS WHILE ESTIMATING T HE INCOME FOR THIS YEAR ON NET ACREAGE BASIS WITH A DIRECTION TO REDUCE THE LE ASE RENTALS, IF ANY, PAID. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. AS COULD BE NOTICED FROM THE WRITTEN SUBMISSIONS AND THE CHART FURNISHED BEFORE US, THE FACTS AND CIRCUMSTANCES WHICH WERE TAKEN INTO CONSI DERATION BY THE ASSESSING OFFICER IN THE SUBSEQUENT YEARS I.E. FOR BLOCK PERI OD, AND ALSO FOR THE YEAR UNDER CONSIDERATION BEING IDENTICAL, THE VIEW TAKEN BY THE ITAT ON THE SAME SET OF FACTS IN RESPECT OF ASSESSMENT YEARS 2002-03 TO 2008-09 IS EQUALLY APPLICABLE TO THE YEAR UNDER CONSIDERATION. UNDER THESE CIRCUMSTANCES, WE ITA NO.301/VIZAG/2011 NUKALA RAMAKRISHNA, ELURU 5 HOLD THAT THE ORDER PASSED BY THE CIT(A) DO NOT CAL L FOR ANY INTERFERENCE AND ACCORDINGLY REJECT ADDITIONAL GROUNDS URGED BEFORE US. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 3 RD DECEMBER14 SD/- SD/- (J. SUDHAKAR REDDY) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT VG/SPS VISAKHAPATNAM, DATED 3 RD DECEMBER, 2014 COPY TO 1 THE ACIT, CENTRAL CIRCLE-2, VISAKHAPATNAM 2 SHRI NUKALA RAMAKRISHNA, MARUTHI NILAYAM, D.NO.78 -45-15, UPPULURIVARI LINE, EASTERN STREET, ELURU 3 THE CIT, VISAKHAPATNAM 4 THE CIT (A) , VISAKHAPATNAM 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM