Kolluru Phani Kumar, Vijayawada V. Assistant Commissioner of Income Tax, Central Circle, Vijayawada

ITA 303/VIZ/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1795 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 13-06-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Assessee Lawyers: M CHANDRAMOULESWARA RAO
• Keywords: Salary income; Set aside
• Section: 143(3); 263; 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , ACCOUNTANT MEMBER . / I . T .A.NO. 3 03 /VIZ/20 1 8 ( / ASSESSMENT YEAR: 20 09 - 10 ) SRI KOLLURU PHANI KUMAR H.NO.23, PADMAVATHI GARDENS PORANKI VIJAYAWADA [PAN : AGSPK0299H] VS. ASST.COMMISSIONER OF INCOME TAX CENTRAL CIRCLE VIJAYAWADA ( / APPELLANT) ( / RESPONDENT) / ASSESSEE BY : SHRI M.CHANDRAMOULESWARA RAO, AR / REVENUE BY : S MT SUMAN MALIK, DR / DATE OF HEARING : 13 . 02 .201 9 / DATE OF PRONOUNCEMENT : 20 .0 3 .2019 / O R D E R PER D.S. SUNDER SINGH, ACCOUNTANT MEMBER: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)] - 3, VISAKHAPATNAM VIDE ORDER IN I.T.A.NO.329/2015 - 16/CIT(A) - 3/VSP/2017 - 18 DATED 27.03.2018 FOR THE ASSESSMENT YEAR (A.Y.) 2009 - 10. 2 I.T.A. NO .3 03 /VIZ/2018 SRI KOLLURU PHANI KUMAR, VIJAYAWADA 2. THE ASSESSEE IS AN INDIVIDUAL, DERIVING INCOME FROM SALARY FROM SRI SESHA SAI TOWNSHIP(P) LTD., IN COME FROM BUSINESS AND PROPERTY. A SEARCH U/S 132 WAS CONDUCTED IN THE GROUP CASES OF SAI TEJA BUILDERS, VIJAYAWADA ON 23.04.2008 AND THE ASSESSMENT WAS COMPLETED U/S 143(3) ON TOTAL INCOME OF RS.1,03,03,180/ - . SUBSEQUENTLY, THE COMMISSIONER OF INCOME TAX (CENTRAL), (CIT)HYDERABAD HAS TAKEN UP THE CASE FOR REVISION U/S 263 OF THE ACT AND SET ASIDE THE ASSESSMENT FRAMED U/S 143(3) BY AN ORDER DATED 31.12.2010. THE AO PASSED THE ORDER U/S 143(3) R.W.S. 263 ON 15.03.2013 GIVING EFFECT TO THE ORDER OF THE C IT(CENTRAL) ON TOTAL INCOME OF RS.1,24,61,480/ - . THE AO MADE THE ADDITION OF RS.21,58,300/ - REPRESENTING UNEXPLAINED CASH FOUND DURING THE COURSE OF SEARCH IN THE REVISED ASSESSMENT ORDER DATED 15 . 03 . 2013. 3. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE WENT ON APPEAL BEFORE THE CIT(A) AND THE LD.CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE FOR NON - PROSECUTION OBSERVING THAT THE ASSESSEE DID NOT RESPOND TO THE FINAL SHOW CAUSE NOTICE ISSUED BY THE LD.CIT(A). THE LD.CIT(A) FURTHER OBSERVED THAT THE AUTHOR IZED REPRESENTATIVE OF THE ASSESSEE HA S SUBMITTED A REPLY TO THE NOTICE OF LD.CIT(A) AND FILED A LETTER DATED 05.03.2018 STATING THAT THE ASSESSEE WAS NOT RESPONDING TO THE CORRESPONDENCE MADE BY HIM. THE 3 I.T.A. NO .3 03 /VIZ/2018 SRI KOLLURU PHANI KUMAR, VIJAYAWADA AUTHORIZED REPRESENTATIVE ALSO REQUESTED THE LD.CIT(A) TO ISSUE ANOTHER NOTICE TO THE ASSESSEE DIRECTLY TO COMPLETE THE APPEAL PROCEEDINGS . SINCE THE LD.CIT(A) COULD NOT GATHER THE CORRECT ADDRESS OF THE ASSESSEE, THE NOTICE COULD NOT BE SENT TO THE ASSESSEES ADDRESS. IN THE FACTS AND CIRCUMSTANCE S, THE LD.CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE EX - PARTE, CONFIRMING THE ADDITION MADE BY THE AO. 4. AGGRIEVED BY THE ORDER OF THE LD.CIT(A), THE ASSESSEE FILED APPEAL BEFORE THIS TRIBUNAL. DURING THE APPEAL HEARING, THE LD.AR SUBMITTED THAT THE L D.CIT(A) PASSED THE ORDER ON 27.03.2018 WITHOUT GIVING ANY OPPORTUNITY TO THE ASSESSEE. THE LD.AR FURTHER SUBMITTED THAT T HE HEARING NOTICE ISSUED BY THE LD.CIT(A) H AS NOT REACHED THE ASSESSEE OR HIS FAMILY MEMBERS. BECAUSE OF NON - RECEIPT OF THE NOTICES B Y THE ASSESSEE, THE ASSESSEE COULD NOT APPEAR BEFORE THE LD.CIT(A) AND MAKE HIS SUBMISSIONS TO ASSAIL THE CASE, THEREFORE, REQUESTED TO REMIT THE MATTER BACK TO THE FILE OF THE LD.CIT(A) TO DECIDE THE ISSUE AFRESH ON MERITS. 5. ON THE OTHER HAND, THE LD.D R VEHEMENTLY OPPOSED FOR SENDING THE MATTER BACK TO THE FILE OF THE LD.CIT(A). THE LD.DR SUBMITTED THAT IN THE INSTANT CASE, THE LD.CIT(A) HAD ISSUED NOTICE IN THE ADDRESS GIVEN IN THE 4 I.T.A. NO .3 03 /VIZ/2018 SRI KOLLURU PHANI KUMAR, VIJAYAWADA APPEAL MEMO. THE ADDRESS GIVEN IN THE APPEAL MEMO WAS RELATING TO THE AUTHORIZED REPRESENTATIVE AND THE CIT(A) HAS DULY SERVED THE NOTICES ON THE AUTHORIZED REPRESENTATIVE. THE AUTHORIZED REPRESENTATIVE APPEARED BEFORE THE LD.CIT(A) BUT REGRETTED HIS INABILITY TO SUBMIT THE REQUIRED INFORMATION SINCE THE ASSESSEE WAS NOT COO PERATING WITH THE AR. THE LD.CIT(A) WAS ALSO NOT IN A POSITION TO SEND THE NOTICES TO THE CORRECT ADDRESS OF THE ASSESSEE, SINCE, THE ADDRESS WAS NOT MADE AVAILABLE TO HIM. THEREFORE, ARGUED THAT THERE IS NO CASE FOR REMITTING THE MATTER BACK TO THE FILE OF THE LD.CIT(A) AND REQUESTED TO CONFIRM THE ORDER OF THE LD.CIT(A). 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED ON RECORD. THERE IS NO DISPUTE THAT THE LD.CIT(A) HAS GIVEN OPPORTUNITY TO THE ASSESSEE BY SENDING NOTICES TO THE AUTH ORIZED REPRESENTATIVE AS PER THE ADDRESS GIVEN IN THE FORM NO.35. THE ASSESSEE HAS MENTIONED THE ADDRESS OF THE ASSESSEE ALSO IN COLUMN NO.1 OF FORM 35 WHICH W AS MISSED THE ATTENTION OF THE LD. CIT(A), HENCE HE COULD NOT SEND NOTICES DIRECTLY TO THE ASSES SEE EVEN AFTER THE AUTHORIZED REPRESENTATIVE EXPRESSED HIS INABILITY TO REPRESENT THE CASE. THE CIT(A) SHOULD HAVE MADE EFFORTS TO TRACE THE CORRECT ADDRESS BY TAKING UP CASE WITH THE AO OR SERVED THE NOTICE THROUGH THE ASSESSING OFFICER BEFORE DECIDING THE APPEAL. THE LD.CIT(A) DECIDED 5 I.T.A. NO .3 03 /VIZ/2018 SRI KOLLURU PHANI KUMAR, VIJAYAWADA THE APPEAL EX - PARTE WHICH IS NOT PERMITTED AS PER LAW. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE SHOULD BE GIVEN ONE MORE OPPORTUNITY FOR DEFENDING THE CASE. ACCORDINGLY, APPEAL OF THE ASSESSEE IS REMI TTED BACK TO THE FILE OF THE LD.CIT(A) WITH A DIRECTION TO DECIDE THE CASE ON MERITS AFTER GIVING OPPORTUNITY TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO COOPERATE WITH THE DEPARTMENT IN DECIDING THE APPEAL DULY RESPONDING TO THE NOTICES OF THE CIT(A). 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH MARCH, 2019. SD/ - SD/ - ( . ) ( . . ) (V. DURGA RAO) ( D.S. SUNDER SINGH ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM /DATED : 20 .03.2019 L.RAMA, SPS 6 I.T.A. NO .3 03 /VIZ/2018 SRI KOLLURU PHANI KUMAR, VIJAYAWADA / COPY OF THE ORDER FORWARDED TO: - 1. / THE ASSESSEE - SRI KOLLURI PHANI KUMAR, H.NO.23, PADMAVATHI GARDENS, PORANKI, VIJAYAWADA 2. / THE REVENUE ASST.COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE VIJAYAWADA 3. THE PR. COMMISSIONER OF INCOME TAX (CENTRAL) , VISAKHAPATNAM 4. COMMISSIONER OF INCOME - TAX (APPEALS) - 3 , VI SAKHAPATNAM 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM