Sri Sana Mangayamma, Kakinada V. The CIT(A)-2, Visakhapatnam

ITA 324/VIZ/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5876 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 30-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D K SONOWAL
• Assessee Lawyers: M MADHUSUDHAN
• Keywords: Depreciation; Opportunity of being heard; Cost of acquisition; Reasonable cause; Right to appeal; Ignorance of law
• Section: 143(3); 54B; 246

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. 324 & 325 /VIZ/201 6 ( / ASSESSMENT YEAR: 20 0 8 - 0 9 ) SRI SANA MANGAYAMMA D.NO.55 - 5 - 8/1 PEDABOTLAVARI ST JAGANAIKPUR KAKINADA [PAN :AOSPS7952P] VS. INCOME TAX OFFICER WARD(2) KAKINADA COMMISSIONER OF INCOME TAX RAJAHMUNDRY ( / APPELLANT) ( / RESPONDENT) / APPELLANT BY : SHRI M.MADHUSUDHAN, AR / RESPONDENT BY : SHRI D.K.SONOWA L , CIT DR / DATE OF HEARING : 18 . 01. 201 9 / DATE OF PRONOUNCEMENT : 30 . 01 .201 9 / O R D E R PER D.S. SUNDER SINGH, ACCOUNTANT MEMBER: TH ESE APPEAL S ARE FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS) [CIT(A) ] - 2 , GUNTUR VIDE APPEAL NO.158/14 - 15 DATED 21.04.2016 AND AGAINST THE ORDER OF THE CIT, 2 I.T.A. NO .324 & 325/VIZ/2016 SRI SANA MANGAYAMMA, KAKINADA RAJAHMUNDRY VIDE F.N O .18/263/CIT/RJY/2012 - 13 DATED 14.03.2014 FOR THE ASSESSMENT YEAR (A.Y.)2008 - 09. I.T.A. NO.325/VIZ/201 6 2. THERE WAS A DELAY OF 760 DAYS IN FILING THE APPEAL AGAINST THE ORDER OF THE LD.CIT PASSED U/S 263. THE ASSESSEE FILED CONDONATION PETITION REQUESTING FOR CONDONING THE DELAY AND THE REASONS SUBMITTED BY THE ASSESSEE FOR FILING TH E APPEAL BELATEDLY ARE THAT THE ASSESSEE IS AN UNEDUCATED, IGNORANT OF THE PROVISIONS OF THE TAXATION LAW AND SHE IS COMPLETELY DEPENDENT ON TAX CONSULTANT, WHO HAS SUGGESTED FOR FILING APPEAL AGAINST THE ORDER U/S 143(3) R.W.S. 263 INSTEAD OF FILING SEPAR ATE APPEAL AGAINST THE ORDER U/S 263. THE TAX CONSULTANT DID NOT ADVISE THE ASSESSEE TO GO ON APPEAL AGAINST THE ORDER U/S 263. THEREFORE, REQUESTED TO CONDONE THE DELAY AND ADMIT THE APPEAL. 3. ON THE OTHER HAND, THE LD.DR ARGUED THAT IGNORANCE OF LAW IS INEXCUSABLE AND THERE IS NO REASONABLE CAUSE FOR CONDONING THE DELAY. 4. WE HAVE HEARD BOTH THE PARTIES , PERUSED THE MATERIAL PLACED ON RECORD AND OBSERVE THAT THE REASONS EXPLAINED BY THE ASSESSEE FOR CONDONING OF DELAY IS NEITHER CONVINCING NOR SAT ISFACTORY. THEREFORE, WE 3 I.T.A. NO .324 & 325/VIZ/2016 SRI SANA MANGAYAMMA, KAKINADA ARE UNABLE TO CONDONE THE DELAY AND THE APPEAL FILED BY THE ASSESSEE IS DISMISSED IN LIMINE. I.T.A NO.324/VIZ/2016 5. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) IN APPEAL NO.158/14 - 15 DATED 21.04.2016 AGAINST THE CONSEQUENTIAL ORDER PASSED BY THE AO U/S 143(3) R.W.S. 263 OF THE ACT DATED 17.09.2014. IN THIS CASE, THE ASSESSMENT WAS ORIGINALLY COMPLETED U/S 143(3) R.W.S. 147 ON 05.09.2011 ON TOTAL INCOME OF RS.58,06,150/ - AGAINST THE RETURNED INCOME OF RS.2,59,460/ - . SUBSEQUENTLY, THE CIT HAS TAKEN UP THE CASE FOR REVISION U/S 263 AND FOUND THAT THE ASSESSEE HAS SOLD 5.2 ACRES OF LAND LOCATED AT CHOLLANGI , TO URBAN REALITY (P) LTD., MUMBAI FOR A CONSIDERATION OF RS.1,49,78,750/ - ON 03.10.2007 AND CLAIMED THE EXEMPTION OF RS.1,46,91,679/ - U/S 54B OF THE ACT. IN THE ASSESSMENT PASSED U/S 143(3) R.W.S.147 THE AO DISALLOWED THE SUM OF RS.55,46,685/ - AND ALLOWED THE BALANCE AS EXEMPTION U/S 54B OF THE ACT. T HE DISALLOWANCE OF RS.55,46,685/ - WAS M ADE SINCE THE PROPERTY PURCHASED BY THE ASSESSEE WAS NOT THE AGRICULTURAL LAND. THE AO ALLOWED THE BALANCE AMOUNT AS EXEMPTION OF U/S 54B OF THE ACT FOR PURCHASE OF AGRICULTURAL LAND S ON 4 I.T.A. NO .324 & 325/VIZ/2016 SRI SANA MANGAYAMMA, KAKINADA VARIOUS DATES AS UNDER DATE OF PURCHASE COST INCLU DING STAMP DUTY (IN RS.) 31.03.2009 55,46,685 31.03.2009 5,41,535 31.03.2009 4,52,565 31.03.2009 62,64,210 31.07.2009 19,71,760 31.03.2009 92,30,070 5.1 THE LD. CIT IN THE REVISION PROCEEDINGS OBSERVED THAT THE ASSESSEE MADE THE DEPOSIT OF CONSIDERATION O N SALE OF LANDS IN FIXED DEPOSITS IN BANK AND EARNED THE INTEREST INSTEAD OF MAKING INVESTMENT IN ACQUIRING THE EXEMPTED ASSET S OR DEPOSITING THE SUM IN SPECIFIED BANK ACCOUNTS FOR CLAIMING L ONG TERM CAPITAL GAINS EXEMPTION . AS PER THE ORD ER OF THE LD.CIT THE ASSESSEE SHOULD HAVE ACQUIRED THE EXEMPTED ASSET BEFORE THE END OF F.Y . OR DEPOSITED THE CONSIDERATION ON BEFORE 31 .07. 2008 IN SPECIFIED ACCOUNT, INSTEAD , DEPOSITED THE CONSIDERATION IN FIXED DEPOSITS IN BANK AND ACQUIRED THE AGRICULTURAL LANDS IN F.Y.2008 - 09 RELEVANT TO A.Y. 2009 - 10 . T HUS VIEWED THAT THE AO HAS ERRONEOUSLY ALLOWED THE DEDUCTION U/S 54B FOR AN AMOUNT OF RS.92,30,070 / - WHICH SHOULD HAVE BEEN DISALLOWED , SINCE , THE CLAIM WAS NOT IN ACCORDANCE WITH THE PROVISIONS OF INCOME TAX LAW, THEREFORE, HELD THAT THE ASSESSMENT ORDER PASSED BY THE AO IS ERRONEOUS 5 I.T.A. NO .324 & 325/VIZ/2016 SRI SANA MANGAYAMMA, KAKINADA AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. ACCORDINGLY, DIRECTED THE AO TO WITHDRAW THE CLAIM OF THE ASSESSEE WHILE GIVING EFFECT TO THE ORDER. HOWEVER, THE L D. CIT ALSO DIRECTED THE AO TO GIVE OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE PASSING CONSEQUENTIAL ORDER. 6. AO PASSED THE CONSEQUENTIAL ORDER U/S 143(3) R.W.S. 263 WITHDRAWING THE EXEMPTION ALLOWED BY THE AO U/S 54B OF THE ACT AND THE LONG TERM CAPITAL GAIN S WAS DETERMINED AT RS.1,46,91, 679/ - BY AN ORDER DATED 17.09.2014. AGAINST THE ORDER PASSED U/S 143(3) R.W.S. 263 DATED 17.09.2014, THE ASSESSEE WENT ON APPEAL BEFORE THE CIT(A) AND THE LD.CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE STATING THAT THE CIT HAS GIVEN A CLEAR DIRECTION TO W ITHDRAW THE EXEMPTION CLAIMED BY THE ASSESSEE U/S 54B AND HELD THAT HAVING NOT FILED THE APPEAL BEFORE THE ITAT IT GOES TO SAY THAT THE DIRECTION / FINDING GIVEN BY CIT U/S 263 IS ACCEPTABLE FOR THE ASSESSEE , ACCORDINGLY DISMISSED THE APPEAL OF THE ASSESSE E. FOR THE SAKE OF CLARITY AND CONVENIENCE, WE EXTRACT THE RELEVANT PART OF THE ORDER OF THE LD.CIT(A) WHICH READS AS UNDER : FROM THE ABOVE ORDER OF THE CIT IT IS CLEAR THAT THE CIT WAS NOT SATISFIED ABOUT THE PROPER VERIFICATION / EXAMINATION OF THE ISSUES BY THE AO, THE CIT INSTEAD OF DIRECTING THE AO TO CONDUCT ENQUIRY OR VERIFY THE ISSUES, HE HIMSELF HAS ARRIVED AT CONCLUSION AND DIRECTED THE AO TO WITHDRAW THE DEDUCTION U/S 54B 'WHICH WAS ERRONEOUSLY ALLOWED BY THE AO' AS IT WAS PREJUDICIA L TO THE INTEREST OF REVENUE. 6 I.T.A. NO .324 & 325/VIZ/2016 SRI SANA MANGAYAMMA, KAKINADA SO FROM THE CIT'S ORDER IT IS CLEAR THAT THERE IS NO OTHER OPTION LEFT TO THE AO BUT TO WITHDRAW THE DEDUCTION CLAIMED BY THE ASSESSEE UJS.54 B . IN ADDITION, WHAT WAS DONE BY THE AO WAS SIMPLY FORTIFYING WITH VARIOUS CASE LAWS, THE FINDING GIVEN BY THE CIT. IF THERE IS ANY GRIEVANCE TO THE ASSESSEE HE SHOULD HAVE FILED APPEAL AGAINST THE ORDER OF THE CIT PASSED U/S 263. BUT THE AR SUBMITTED THAT THE ORDER OF THE CIT PASSED U/S 263 WAS NOT CONTESTED. THIS GOES TO SAY THAT THE DIRECTION / FINDING GIVEN BY THE CIT U/S 263 IS ACCEPTABLE TO THE ASSESSEE. SUCH BEING THE CASE, THE ASSESSEE AGAIN CANNOT CONTEST THE ORDER OF THE AO PASSED U/S 143(3) R.W.S. 26 3 WHICH WAS ONLY PASSED TO GIVE EFFECT TO THE ORDER OF THE CIT. IN EFFECT ALL THE GROUNDS OF APPEAL ARE DISMISSED, AS NON - MAINTAINABLE AND VOID OF MERIT . 7. AGGRIEVED BY THE ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. DURING THE APPEAL HEARING, THE LD.AR ARGUED THAT THE ORDER PASSED BY THE CIT, RAJAHMU NDRY IS SO CONFUSING AND GIVEN AN IMPRESSION THAT THE ORDER WAS SET ASIDE TO THE FILE OF THE AO. ON ONE HAND, THE CIT GAVE DIRECTION TO WITHDRAW THE EXEMPTION CLAIMED BY THE ASSESSEE AND ON THE OTHER HAND IN CONCLUDING PARAGRAPHS , THE CIT HAS SET ASIDE TH E ORDER PASSED U/S 143(3) AND DIRECTED THE AO TO PASS CONSEQUENTIAL ORDER AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE UNDERSTOOD FROM THE READING OF THE CIT ORDER THAT THE ASSESSMENT WAS SET ASIDE DENOVO FOR REDOING THE ASSESSMENT , SINCE THE LD.CIT HAS DIRECTED THE AO TO GIVE OPPORTUNITY TO THE ASSESSEE TO PRESENT HIS CASE BEFORE THE AO. THEREFORE, ARGUED THAT THERE IS NO SPECIFIC DIRECTION IN THIS CASE AND THE ASSESSMENT 7 I.T.A. NO .324 & 325/VIZ/2016 SRI SANA MANGAYAMMA, KAKINADA WAS SET ASIDE FOR REDOING THE ASSESSMENT AS PER LAW. THUS, ARGUED THAT THE ASSESSEE GETS THE RIGHT OF APPEAL AGAINST THE ORDER PASSED BY THE AO U/S 246 BEFORE THE CIT(A) AND THE LD. CIT(A ) BOUND TO DECIDE THE APPEAL ON MERITS. THE LD.AR FURTHER SUBMITTED THAT THE CIT( A ) DISMISSED THE APPEAL SUMMARILY STATING THAT HAVING NOT FILED THE APPEAL , AGA INST THE ORDER OF THE LD.CIT(A) , IT WAS PRESU MED THAT THE ASSESSEE HAD ACCEPTED THE FINDING OF THE CIT THAT THE EXEMPTION WAS NOT ALLOWABLE WHICH IS INCORRECT INTERPRETATION . THEREFORE RE QUESTED TO SET ASIDE THE ORDER OF THE LD.CIT(A) AND REQUESTED TO REMIT THE MATTER TO THE FILE OF THE CIT(A) TO DECIDE THE ISSUE ON MERITS. 8. ON THE OTHER HAND, THE LD.DR RELIED ON THE ORDERS OF THE CIT(A) AND ARGUED THAT THE CIT HAS GIVEN A SPECIFIC DIRE CTION TO WITHDRAW THE EXEMPTION AND THERE IS NO PLACE FOR AMBIGUITY, HENCE SUBMITTED THAT THE LD.CIT(A) HAS RIGHTLY DISMISSED THE APPEAL AS NOT MAINTAINABLE AND NO REASON TO INTERFERE WITH THE ORDER OF THE CIT(A) AND REQUESTED TO UPHOLD THE ORDER OF THE L D.CIT(A). 9. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED ON RECORD. IN THIS CASE, THE ASSESSEE CLAIMED EXEMPTION U/S 54B TO THE EXTENT OF RS.1,46,91,679/ - AND THE AO HAS DISALLOWED THE SUM OF RS.55,46,685/ - IN 8 I.T.A. NO .324 & 325/VIZ/2016 SRI SANA MANGAYAMMA, KAKINADA THE ORIGINAL ASSESSMENT MADE U/S 143(3) R.W.S. 147 OF THE ACT DATED 05.09.2011. THE CIT HAS TAKEN UP THE CASE FOR REVISION AND IN THE REVISION ORDER IN PARA NO.5, THE CIT HAS GIVEN A SPECIFIC DIRECTION TO THE AO TO WITHDRAW THE EXEMPTION CLAIMED BY THE ASSESSEE AND IN PARA NO.10 AND 11, THE CIT HAS DIRECTED THE AO TO PASS THE CONSEQUENTIAL ORDER AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. FOR THE SAKE OF CLARITY AND CONVENIENCE, WE EXTRACT RELEVANT PART OF THE ORDER OF THE CIT(A) IN PARA NO.7(V) AND PARA NO.10 AND 11 WHICH READS AS UNDER : SUB - PARA (V). AS THE CONDITIONS ARE NOT SATISFIED THE AO WRONGLY ALLOWED THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S548 OF THE IT ACT THEREFORE, THE AO IS DIRECTED TO WITHDRAW THE CLAIM OF THE ASSESSEE WHILE GIVING EFFECT TO THIS ORD ER' 'PARA 10. ......... SINCE THE AO DID NOT VERIFY THESE ISSUES / DID NOT EXAMINE THE ISSUES PROPERLY AS INDICATED ABOVE AT THE TIME OF COMPLETING THE ASSESSMENT U/S 143(3) R.W.S 147 OF THE ITACT, THE ASSESSMENT ORDER, DATED 05.09.2011 NEEDS TO LE REVISED AS PREJUDICE WAS CAUSED TO THE INTERESTS OF THE REVENUE BECAUSE OF THE ERRORS COMMITTED BY THE ASSESS/HG OFFICER. THEREFORE, THE ASSESSMENT ORDER PASSED BY THE AO IS SET ASIDE ON THE ABOVE ISSUES TO THE EXTENT IN DICATED ABOVE.' 'PARA 11... IN VIEW OF THE FOREGOING DISCUSSION AND ANALYSIS WITH REGARD TO THE AFORE STATED ISSUES, IT IS, HEREBY HELD THAT THE ASSESSMENT ORDER DATED 05 . 09.2011 PASSED BY THE AO IS ERRONEOUS INSOFAR AS IT IS PREJUD ICI AL TO THE INTERESTS OF THE REVENUE AND, AS SUCH, NEEDS TO BE REV ISED ON THE LINES DISCUSSED HEREINABOVE, AND THE AO, WHILE GIVING EFFECT TO THIS ORDER S HA LL PASS THE CONSE Q UENTIAL ORDER WI THIN T HE TINE ALLOWED AND AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9.1. PLAIN READING OF THE PARA 7(V) OF THE L D. CIT S ORDER INDICAT ES THAT THE CIT HAS DIRECTED THE AO TO WITHDRAW THE CLAIM WHILE GIVING EFFECT TO THE ORDER PASSED U/S 263. PARA NO.10 AND 11 SHOWS THAT THE ASSESSMENT ORDER 9 I.T.A. NO .324 & 325/VIZ/2016 SRI SANA MANGAYAMMA, KAKINADA PASSED BY THE AO U/S 143(3) R.W.S. 147 WAS SET ASIDE WITH A DIRECTION TO THE AO TO PASS CONSEQUENT IAL ORDERS AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. COMBINED READING OF THE ORDER IN PARA NO.7.5, 10 AND 11 SHOWS THAT THE ASSESSMENT ORDER IS SET ASIDE FOR REDOING THE ASSESSMENT AFTER GIVING OPPORTUNITY. FURTHER, IT IS SETTLED ISSUE THAT WHEN THE RE IS AN AMBIGUITY IN THE ORDER , THE INTERPRETATION BENEFICIAL TO THE ASSESSEE IS TO BE TAKEN. THE CONFUSION CREATED BY THE CIT IN THE ORDER PASSED U/S 263, GAVE THE IMPRESSION TO THE ASSESSEE THAT THE ASSESSMENT WAS SET ASIDE AND WOULD BE ENTITL ED TO APPROACH THE APPELLATE AUTHORITIES AGAINST THE CONSEQUENTIAL ORDER FOR JUSTICE, HENCE HE DID NOT CHOOSE TO APPEAL AGAINST THE ORDER U/S 263, THEREBY DEPRIVED OF HIS RIGHT OF APPEAL BEFORE ITAT, BECAUSE OF SHEER CONFUSION CREATED IN THE REVISIONAL O RDER PASSED U/S 263. AT ONE PLACE, THE CIT HA S GIVEN A SPECIFIC DIRECTION AND AT ANOTHER PLACE, THE CIT HA S GIVEN A DIRECTION TO PASS THE CONSEQUENTIAL ORDER AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE WHICH SHOWS THAT THE INTENTION OF THE CIT IS TO ALLOW REASONABLE OPPORTUNITY TO THE ASSESSEE TO PRESENT HIS CASE AND TO DECIDE THE ISSUE ON MERITS. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE ORDER PASSED BY THE CIT REQUIRED TO BE CONSIDERED AS SET ASIDE WITH A DIRECTION TO THE AO TO REDO THE ASSESSMENT AS PER LAW IN THE INTEREST OF 10 I.T.A. NO .324 & 325/VIZ/2016 SRI SANA MANGAYAMMA, KAKINADA JUSTICE. SIMILAR ISSUE HAS COME UP BEFORE THIS TRIBUNAL IN THE CASE OF K.VENKATA RAJU ENGINEERS AND CONTRACTORS IN I.T.A NO. 92 /VIZ/201 7 DATED 23.05.2018 AND THE ITAT TOOK THE VIEW IN FAVOUR OF THE ASSESSEE AND DIRE CTED THE CIT(A) TO ADJUDICATE THE ISSUES ON MERITS. FOR THE SAKE OF CLARITY AND CONVENIENCE WE EXTRACT RELEVANT PART OF THE ORDER OF THIS TRIBUNAL WHICH READS AS UNDER : 5. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE GONE THROUGH THE LD. CITS ORDER PASSED U/S 263 OF THE ACT. THE RELEVANT PART OF THE LD. CITS ORDER IN PARA 4.4. READS AS UNDER: THE A.O. IS DIRECTED TO ADD THE DEPRECIATION [WHICH HE WRONGLY ALLOWED] AT ` 78,58,461/ - TO THE TOTAL INCOME DETERMINED BY HIM AT ` 4,19,95,050/ - IN HIS ORDER U/S 143(3) OF THE ACT DATED 3.12.2012 AND RE - DETERMINE THE TOTAL INCOME IN ACCORDANCE WITH LAW & ESTABLISHED PROCEDURE AND AFTER AFFORDING A REASONABLE OPPORTUN ITY OF BEING HEARD TO THE ASSESSEE. 6. SIMILARLY, CONCLUDING PARAGRAPH OF THE LD. CIT(A)S ORDER IN PARA 8.1 READS AS UNDER: IF WE APPLY THE ABOVE TESTS TO THE FACTS AND CIRCUMSTANCES OF THIS CASE, IT IS CLEAR THAT THE ASSESSMENT ORDER MADE BY THE A.O. U/S 143(3) OF THE ACT, DATED 3.12.2012 IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF REVENUE ON ALL THE ABOVE COUNTS AND HENCE IT IS SET ASIDE. SINCE THE ISSUES INDICATED IN PARAS 4 TO 7, SUPRA, PRIMARILY AFFECT THE INCOME DETERMINA TION, THE A.O. IS DIRECTED TO REDO THE ASSESSMENT, DENOVO, IN ACCORDANCE WITH LAW & ESTABLISHED PROCEDURE AND AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 7. PLAIN READING OF PARAS 4.4 AND 8.1 OF LD. CITS ORDER, GIVES CONFUSION WIT H REGARD TO THE DIRECTION GIVEN BY THE LD. CIT. IN PARA 4.4, THE CIT HAS DIRECTED THE A.O. TO ADD THE DEPRECIATION AND DIRECTED THE A.O. TO DETERMINE THE INCOME AS PER LAW AND ESTABLISHED PROCEDURE AND AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE. IN THE CONCLUDING PARAGRAPH OF THE LD. CIT ORDER IN PARA NO.8.1, THE LD.CIT HAS SET ASIDE THE ASSESSMENT AND DIRECTED THE A.O. TO RE - DO THE ASSESSMENT AFRESH DE - NOVO, THEREFORE, COMBINED READING OF THE ENTIRE ORDER SHOWS THAT THE A.O. HAS TO BEGIN THE ASS ESSMENT AFRESH, AND THE SPECIFIC 11 I.T.A. NO .324 & 325/VIZ/2016 SRI SANA MANGAYAMMA, KAKINADA DIRECTION GIVEN BY THE CIT TO ADD THE DEPRECIATION IS NULLIFIED BY GENERAL DIRECTION TO RE DO THE ASSESSMENT DE - NOVO. MERE FACT THAT THE ASSESSMENT WAS SET ASIDE TO REDO DE - NOVO AFTER GIVING REASONABLE OPPORTUNITY SHOWS TH AT THE ASSESSMENT HAS TO START FROM THE BEGINNING AND THE ASSESSEE IS ENTITLED TO ALL LEGAL REMEDIES INCLUDING THE APPEAL BEFORE THE CIT(A). ACCORDINGLY, THE ORDER PASSED U/S 143(3) R.W.S. 263 OF THE ACT HAS TO BE CONSIDERED AS FRESH ORDER OF ASSESSMENT A ND THE LD. CIT(A) VESTS WITH THE JURISDICTION TO ADJUDICATE THE ISSUES RAISED IN THE CONSEQUENTIAL ORDER AFRESH ON MERITS. THE VIEW OF CIT(A) WITH REGARD TO SPECIFIC DIRECTION FOR NON - ASSUMPTION OF JURISDICTION IS INCORRECT WHEN THERE IS CONTRADICTORY D IRECTIONS ON THE SAME ISSUE. AS PER THE DECIDED CASE LAWS THE DIRECTION IS IN FAVOUR OF THE ASSESSEE HAS TO BE CONSIDERED AND BENEFIT OF DOUBT SHOULD BE ALLOWED TO THE ASSESSEE. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE CIT WAS NOT INTENDED TO GIVE ANY SPECIFIC DIRECTION AND THE DIRECTION WAS TO REMIT THE MATTER BACK TO THE FILE OF THE A.O. TO RE - DO THE ASSESSMENT AFRESH DE - NOVO. ACCORDINGLY, WE HOLD THAT THE CIT(A) IS VESTED WITH THE JURISDICTION AND DUTY BOUND TO DECIDE THE APPEAL OF THE ASSE SSEE ON MERITS. HENCE, WE SET ASIDE THE ORDER OF THE LD.CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE THE APPEAL OF THE ASSESSEE AFRESH ON MERITS. THE ASSESSEE IS FREE TO TAKE UP ALL THE GROUNDS RELATING TO MERITS BEFORE THE CI T(A). 9.2. SINCE THE FACTS ARE IDENTICAL WE HOLD THAT BY ORDER U/S 263 THE LD.CIT HAS SET ASIDE THE ASSESSMENT MADE UNDER SECTION143(3) R.W.S.147 FOR REDOING THE ASSESSMENT AFRESH BY USING THE WORDS TO PASS CONSEQUENTIAL ORDER AFTER GIVING OPPORTUNITY TO THE ASSESSEE. THEREFORE THE ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 263 DATED 17.09.2014 REQUIRED TO BE CONSIDERED AS A FRESH ORDER OF ASSESSMENT AND THE CIT(A) VESTS WITH THE JURISDICTION TO ADJUDICATE THE ISSUES RAISED IN THE CONSEQUENTIAL ORDER AFRES H ON MERITS. IN THE INSTANT CASE, THE LD.CIT(A) DID NOT PASS THE ORDER ON MERITS, INSTEAD PRESUMED THAT THE ASSESSEE HAVING NOT FILED THE APPEAL BEFORE THE ITAT ACCEPTED THE ORDER U/S 263. THE SAID PRESUMPTION IS 12 I.T.A. NO .324 & 325/VIZ/2016 SRI SANA MANGAYAMMA, KAKINADA INCORRECT IN VIEW OF THE CONFUSION CREAT ED BY THE LD.CIT IN HIS ORDER U/S 263. THEREFORE, IT IS INCUMBENT UPON THE LD.CIT(A) TO DECIDE THE ISSUE ON MERITS. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE LD.CIT(A) TO DECIDE THE APPEAL OF THE ASSESS EE AFRESH ON MERITS . THE ASSESSEE IS FREE TO TAKE UP ALL THE GROUNDS RELATING TO MERITS BEFORE THE CIT(A). 10. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. O RDER PRONOUNCED IN THE OPEN COURT ON 30 TH JANUARY , 201 9 . S D/ - S D/ - ( . ) ( . . ) (V. DURGA RAO) ( D.S. SUNDER SINGH ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM /DATED : 30 . 01.2019 L.RAMA, SPS 13 I.T.A. NO .324 & 325/VIZ/2016 SRI SANA MANGAYAMMA, KAKINADA / COPY OF THE ORDER FORWARDED TO: - 1. / THE ASSESSEE - SRI SANA MANGAYAMMA, D.NO.55 - 5 - 8/1, PEDABOTLAVARI ST, JAGANAIKPUR, KAKINADA 2. / THE REVENUE (I) COMMISSIONER OF INCOME TAX , RAJAHMUNDRY (II) INCOME TAX OFFICER , WARD(2) , KAKINADA 3. THE PR. COMMISSIONER OF INCOME TAX - 2 , VISAKHAPATNAM 4. THE COMMISSIONER OF INCOME - TAX (APPEALS) - 2 , GUNTUR 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM