Demi Realtors, Hyderabad V. DCIT, Central Circle-6, Hyderabad

ITA 334/HYD/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59152 (ITAT-HYDERABAD)
• Duration Of Justice: 10 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 04-03-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: V SRINIVAS
• Assessee Lawyers: V SIVA KUMAR
• Keywords: Search and seizure; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBE R. ITA NO.334/HYD/2011 (ASSESSMENT YEAR 2008-09) M/S. DEMI REALTORS, HYDERABAD (PAN - AAFFD 9401 P ) V/S DY. COMMISSIONER OF INCOME - TAX CENTRAL CIRCLE-6, HYDERABAD . (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI V.SIVA KUMAR RESPONDENT BY : SHRI V.SRINIVAS DATE OF HEARING 15. 12.2011 DATE OF PRONOUNCEMENT 20.1.2012 O R D E R PER ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE CIT(A)-I, HYDERABAD DATED 4.3.2011 FOR THE ASSE SSMENT YEAR 2008-09. 2. EFFECTIVE GROUNDS OF THE ASSESSEE IN THIS APPE AL READ AS FOLLOWS- 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX(APPEALS) IS ERRONEOUS BOTH ON FACTS AND IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) ERRED IN NOT CONDONING THE DELAY OF TWO DAYS IN FILING TH E APPEAL. THE LEARNED COMMISSIONER OF INCOME- TAX(APPEALS) OUGHT TO HAVE CONDONED THE DELAY CONSIDERING THE PETITION REQUESTING FOR CONDONATION OF DELAY FILED BY THE APPELLANT. 3. THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) ERRED IN NOT ADMITTING THE APPEAL AND IN DISMISSING THE A PPEAL WITHOUT DECIDING THE GROUNDS ON MERIT. THE HONBL E COMMISSIONER OF INCOME-TAX(APPEALS) OUGHT TO HAVE ADMITTED THE APPEAL AND CONSIDERED EACH GROUND OF APPEAL AGITATED BEFORE HIM. ITA NO.334/HYD/2011 M/S. DEMI RE ALTORS, HYDERABAD 2 3. FACTS OF THE CASE IN BRIEF ARE THAT THERE WAS A SEARCH AND SEIZURE OPERATION UNDER S.132 OF THE INCOME-TAX ACT , 1961, CONDUCTED AT THE BUSINESS PREMISES OF THE ASSESSEE ON 17.10.2 007. THE ASSESSEE FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008 -09 ON 7.7.2009, DECLARING AN INCOME OF RS.2,01,42,190. AS AGAINST THIS, THE ASSESSING OFFICER COMPLETED THE ASSESSMENT DETERMINING THE T OTAL INCOME OF THE ASSESSEE AT RS.175,74,44,335, VIDE ORDER OF ASSESSM ENT DATED 29.12.2009 PASSED UNDER S.143(3) OF THE ACT. 4. AGGRIEVED BY THE ASSESSMENT THUS MADE, ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A), WHO, VIDE IMPUG NED ORDER DATED 4.3.2011, DISMISSED THE APPEAL OF THE ASSESSEE FIRS TLY ON THE GROUND THAT THE ADMITTED TAX WAS NOT PAID BY THE ASSESSEE AND CONSEQUENTLY APPEAL OF THE ASSESSEE IS NOT MAINTAINABLE UNDER S. 249(4) OF THE ACT, AND SECONDLY THERE WAS TWO DAYS DELAY IN THE FILIN G OF THE APPEAL BEFORE HIM, FOR WHICH NO VALID REASON COULD BE EXPL AINED BY THE ASSESSEE. THE CIT(A), THUS DISMISSED THE APPEAL O F THE ASSESSEE IN LIMINE, AND WITHOUT GOING INTO MERITS. 5. AGGRIEVED BY THE ORDER OF THE CIT(A), ASSESSEE PREFERRED THIS SECOND APPEAL BEFORE US. 6. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THOUGH THE ASSESSEE HAS NOT PAID THE ADMITTED TAX B Y THE TIME OF FILING OF THE RETURN ON 7.7.2009, IT HAS PAID THE MONIES T O THE EXTENT OF ADMITTED TAX BY MAKING REMITTANCES OF RS.18,46,328 ON 29 TH JANUARY, 2010; OF RS.12,00,000 ON RS.3RD FEBRUARY, 2010 AND RS. RS.9,54,000 ON 24.3.2010, WHILE THE FIRST APPEAL BEFORE THE CIT (A) WAS FILED ON 3 RD FEBRUARY, 2011. A COPY EACH OF THE CHALLANS FOR TH E ABOVE PAYMENTS AND ALSO COPY OF THE FIRST PAGE OF THE RETURN INDIC ATING THE TAX, ETC. ON THE INCOME ADMITTED IN THE RETURN, ARE ALSO FURNISH ED BEFORE US. HENCE, ITA NO.334/HYD/2011 M/S. DEMI RE ALTORS, HYDERABAD 3 IT IS SUBMITTED THAT SINCE ADMITTED TAXES HAVE ALRE ADY BEEN PAID BY THE ASSESSEE, THERE WAS NO VIOLATION OF S.249(4) OF THE ACT, AND THE CIT(A) WAS NOT JUSTIFIED IN NOT ADMITTING THE APPEAL OF TH E ASSESSEE ON THE GROUND OF NON-PAYMENT OF ADMITTED TAXES. IN THIS BE HALF, HE PLACED RELIANCE ON THE DECISION OF THIS TRIBUNAL DATED 16. 9.2011 IN THE CASE OF M/S. D.S.KARUNAKAR REDDY, HYDERABAD IN ITA NO402/HY D/2011 FOR ASSESSMENT YEAR 2008-09, AND FILED A COPY THEREOF B EFORE US. EVEN WITH REGARD TO THE DELAY IN FILING THE APPEAL, IT W AS SUBMITTED THAT THE DELAY WAS JUST TWO DAYS AND CONSIDERING THE EXPLANA TION OFFERED BY THE ASSESSEE EVEN FOR SUCH A SMALL DELAY, THE CIT(A) OU GHT TO HAVE CONDONED THE SAME, AND DECIDED THE APPEAL ON MERITS . 7. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND, STRONGLY SUPPORTED THE ORDER OF THE CIT(A). 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE IMPUGNED ORDER OF THE COMMISSIONER(APPEALS) AND OTH ER MATERIAL ON RECORD. IT IS EVIDENT FROM THE COPY OF THE RETURN OF THE ASSESSEE FILED BEFORE US THAT THE NET TAX ON THE INCOME ADMITTED I N THE RETURN FILED BY THE ASSESSEE IS RS.68,46,330, AND TOGETHER WITH INT EREST OF RS.9,53,346 DUE THEREON, TOTAL AMOUNT OF TAX AND I NTEREST PAYABLE BY THE ASSESSEE WORKED OUT TO RS.77,99,676. THE POSITI ON WITH REGARD TO PAYMENT OF THIS AMOUNT BY THE ASSESSEE IS AS FOLLOW S- (A) TOTAL AMOUNT DUE AS PER RETURN RS.77,99,676 (B) AMOUNTS PAID: (A) ADVANCE TAX PAID AS PER RETURN RS .36,00,000 (B) PAYMENT ON 291.2010 RS. 18,46,328 (C) PAYMENT ON 3.2.2010 RS. 12,00,000 (D) PAYMENT ON 24.3.2010 RS. 9,54,000 TOTAL AMOUNT PAID RS.76,00,328 ITA NO.334/HYD/2011 M/S. DEMI RE ALTORS, HYDERABAD 4 SHORT FALL IN PAYMENT OF TAXES ON ADMITTED INCOME (A-B) (VIZ. RS.77,99,676-76,00,328) = RS. 1,99,348 WE FIND THAT THERE IS SHORT-FALL IN THE PAYMENT OF ADMITTED TAXES BY RS.1,99,348. THE LEARNED DEPARTMENTAL REPRESENTATIV E SUBMITTED THAT IF THE ASSESSEE IS ABLE TO FURNISH THE EVIDENCE OF PAYMENT OF THE ABOVE SHORT-FALL OF RS.1,99,348, THIS TRIBUNAL MAY SET AS IDE THE ISSUE TO THE FILE OF THE CIT(A), FOR FRESH ADJUDICATION OF THE A PPEAL BY HIM ON MERITS THEREOF. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE DECISION OF THE TRIBUNAL IN THE CASE OF D.S .KARUNAKAR REDDY V/S. DCIT IN ITA NO.402/HYD/2011 FOR THE ASSESSMENT YEAR 2008-08 RELIED UPON BY THE LEARNED COUNSEL FOR THE ASSESSEE BEFORE US, WE ARE INCLINED TO SET ASIDE THE MATTER TO THE FILE OF THE CIT(A), TO VERIFY WHETHER AS ON THE DATE OF THIS ORDER, THE ASSESSEE PAID THE ADMITTED TAX. IF THE ASSESSEE IS FOUND TO HAVE PAID THE AD MITTED TAXES AGGREGATING TO RS.77,99,676, THE CIT(A) MAY DISPOSE OF THE APPEAL BEFORE HIM AFRESH, ON THE MERITS OF THE ISSUES RAIS ED THEREIN, AFTER CONSIDERING THE EXPLANATION OF THE ASSESSEE, IF ANY , FOR THE DELAY IN THE FILING OF THE APPEAL. WE MAY NOTE AT THIS JUNCTURE , SHORT-FALL IN THE PAYMENT OF ADMITTED TAX IS A CURABLE DEFECT, AND TI LL SUCH TIME SUCH DEFECT IS CURED, APPEAL IS ONLY DEFECTIVE, AND AS S OON AS SUCH DEFECT IS CURED, THE APPEAL BECOMES VALID. IN THIS VIEW OF THE MATTER, SINCE THE APPEAL FILED BY THE ASSESSEE BEFORE THE CIT(A) WAS NOT VALID AS ON 3.2.2010 WHEN IT WAS FILED ON ACCOUNT OF DEFECT OF NON-PAYMENT OF ADMITTED TAXES, AND IT BECOMES VALID ONLY WHEN THE ADMITTED TAXES ON THE RETURNED INCOME ARE PAID. CONSEQUENTLY, TILL SU CH TIME THE DEFECT IS NOT CURED, THE DELAY IN THE FILING OF THE APPEAL BY THE ASSESSEE BEFORE THE CIT(A) CONTINUES AND THE ASSESSEE HAS TO EXPLAI N THE SAME FOR SEEKING CONDONATION OF DELAY, BY FILING NECESSARY P ETITION IN THAT BEHALF. IN CASE THE ASSESSEE FILES NECESSARY PETIT ION SEEKING ITA NO.334/HYD/2011 M/S. DEMI RE ALTORS, HYDERABAD 5 CONDONATION OF DELAY, RESULTING ON ACCOUNT OF DELAY ED PAYMENT OF ADMITTED TAXES, CONSEQUENTLY EXPLAINING THE DELAYED PAYMENT OF ADMITTED TAXES, THE CIT(A) MAY CONSIDER THE SAME AP PROPRIATELY, AND DISPOSE OF THE APPEAL BEFORE HIM AFRESH ON MERITS, IN CASE HE FINDS MERIT IN SUCH PETITION OF THE ASSESSEE SEEKING COND ONATION OF DELAY. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 20.1.2012 SD/- SD/- (CHANDRA POOJARI) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER. JUDICIAL MEMBER. DT/- 20TH JANUARY, 2012 COPY FORWARDED TO: 1. M/S. DEMI REALTORS, C/O. SHRI S.RAMA RAO, FLAT NO.102, SHIRYA'S ELEGANCE, NO.3-6-643, STREET NO.9, HIMAYATNAGAR, HYDERABAD 500029 2. DY. COMMISSIONER OF INCOME - TAX CENTRAL CIRCLE - 6, HYDERABAD 3. COMMISSIONER OF INCOME - TAX(APPEALS) I, HYDERABAD 4. COMMISSIONER OF INCOME-TAX CENTRAL HYDERABAD 5. THE D.R., ITAT, HYDERABAD. B.V.S.