K. Venkataraju Engineers and Contractors, Vijayawada V. The CIT, Vijayawada

ITA 434/VIZ/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3825 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 02-11-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DEBAKUMAR SONOWAL
• Assessee Lawyers: M MADHUSUDHAN
• Keywords: Depreciation; Competent authority; Condonation of delay; Set aside
• Section: 143(3); 145; 263

Judgement Text

ITA NO.434 /VIZAG/2016 K. VENKATA RAJU, ENGINEERS & CONTRACTORS, VIJAYAWAD A 1 , , 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.434/VIZAG/2016 ( / ASSESSMENT YEAR: 2010-11) K. VENKATA RAJU ENGINEERS & CONTRACTORS VIJAYAWADA CIT, VIJAYAWADA [PAN NO. AAFFK1861Q ] ( ' / APPELLANT) ( ()' / RESPONDENT) / APPELLANT BY : SHRI M. MADHUSUDHAN, AR / RESPONDENT BY : SHRI DEBA KUMAR SONOWAL, DR / DATE OF HEARING : 17.05.2018 / DATE OF PRONOUNCEMENT : 23.05.2018 / O R D E R PER D.S. SUNDER SINGH, ACCOUNTANT MEMBER: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST ORDER OF THE COMMISSIONER OF INCOME TAX, VIJAYAWADA VIDE ITA NO.336/CIT(A)/VJA/2015-16 DATED 28.10.2016 FOR THE ASSESSMENT YEAR 2010-11. ITA NO.434 /VIZAG/2016 K. VENKATA RAJU, ENGINEERS & CONTRACTORS, VIJAYAWAD A 2 2. THERE WAS A DELAY OF 521 DAYS IN FILING THE APPE AL BY THE ASSESSEE. THE ASSESSEE FILED APPEAL AGAINST ORDER U/S 263 OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS 'THE ACT') PASSED BY TH E COMMISSIONER OF INCOME TAX (CIT), VIJAYAWADA DATED 26.3.2015. AGAI NST THE RECEIPT OF THE ORDER DATED 1.4.2015, THE ASSESSEE FILED APPEAL ON 2.11.2016 STATING RESULTING IN DELAY OF 521 DAYS. THE ASSESSEE FILED CONDONATION PETITION STATING THAT THE ASSESSEE WAS UNDER THE BONAFIDE BE LIEF THAT THE APPEAL LIES WITH THE CIT(A) AGAINST THE CONSEQUENTIAL ORDE R PASSED U/S 143(3) R.W.S. 263 OF THE ACT, SINCE THE LD. CIT HAS SET AS IDE THE ASSESSMENT WITH A DIRECTION TO REDO THE ASSESSMENT DE-NOVO IN ACCORDANCE WITH LAW AND ESTABLISHED PROCEDURE HENCE THE APPEAL WAS NOT FILED BEFORE THE ITAT. HOWEVER, THE AO HAS PASSED THE CONSEQUENTIAL ORDER U/S 143(3) R.W.S. 263 OF THE ACT ON 21.1.2016 AGAINST WHICH TH E ASSESSEE FILED APPEAL BEFORE THE CIT(A) AND THE LD. CIT(A) DISMISS ED THE APPEAL FOR WANT OF JURISDICTION. THE LD. CIT(A) WAS OF THE VI EW THAT SINCE THE CIT(A) AND CIT ARE PARALLEL AND EQUAL AUTHORITIES, THE ORDER PASSED BY THE CIT CANNOT BE SUBJECT MATTER OF APPEAL BEFORE T HE CIT(A) AND ACCORDINGLY DISMISSED THE APPEAL, HENCE, THE ASSESS EE HAS TO APPROACH THE TRIBUNAL FOR JUSTICE. 3. THE LD. A.R. DURING THE APPEAL HEARING ARGUED TH AT THOUGH THE LD. CIT HAS SET ASIDE THE ASSESSMENT FOR REDOING THE AS SESSMENT DE-NOVO, ITA NO.434 /VIZAG/2016 K. VENKATA RAJU, ENGINEERS & CONTRACTORS, VIJAYAWAD A 3 NON-ENTERTAINING THE APPEAL OF THE ASSESSEE FOR WAN T OF JURISDICTION HAS CAUSED IRREPARABLE LOSS TO THE ASSESSEE. FURTHER, THE LD. A.R. SUBMITTED THAT THERE IS A MERIT IN THE ASSESSEES CASE, HENCE REQUESTED TO CONDONE THE DELAY AND ALLOW THE APPEAL OF THE ASSESSEE. 4. ON THE OTHER HAND, THE LD. D.R. SUPPORTED THE OR DERS OF THE AUTHORITIES BELOW. 5. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATER IALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. IN THIS CASE, THE ORDER PASSED U/S 263 OF THE ACT WAS COMMU NICATED TO THE ASSESSEE ON 1.4.2015 AND THERE WAS A DELAY OF 521 D AYS IN FILING THE APPEAL OF THE ASSESSEE. ON RECEIPT OF THE ORDER U/ S 263 OF THE ACT, ASSESSEE DID NOT PREFER APPEAL BUT AFTER SUBSTANTIA L DELAY, THE ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL. THE ASSESSEE IS HAVING RIGHT TO GO ON APPEAL AGAINST THE ORDER OF THE LD. CIT AND NOT PRE FERRING APPEAL WOULD TANTAMOUNT TO ACCEPTANCE OF THE ORDER OF THE CIT. T HE EXPLANATION OF THE ASSESSEE FOR CONDONATION OF DELAY WAS NON ASSUM PTION OF JURISDICTION BY THE LD. CIT(A) AGAINST THE ORDER PA SSED BY THE AO U/S 143(3) R.W.S 263 OF THE ACT. THE ASSESSEE IN PARA N O.6 OF THE AFFIDAVIT STATED AS UNDER: ITA NO.434 /VIZAG/2016 K. VENKATA RAJU, ENGINEERS & CONTRACTORS, VIJAYAWAD A 4 6. HOWEVER DURING THE COURSE OF HEARING OF THE APPE AL, THE LD. CIT(A) RAISED THE ISSUE THAT THE ASSESSEE SHOULD HA VE FILED AN APPEAL BEFORE THE HONBLE ITAT AGAINST THE ORDER U/S 263; AND HE BEING THE PARALLEL AUTHORITY HE HAD NO JURISDICTION TO ADJUDI CATE THE ISSUES INVOLVED IN THE APPEAL. TO ANALYZE, IT IS HELD BY THE LD. C IT(A) AT PARA 5.2.3 OF HIS ORDER DATED 28.10.2016 AS FOLLOWS: AS CIT AND CIT(A) ARE PARALLEL AND EQUAL AUTHORITI ES, DECISION OF THE A.O. ON THE SPECIFIC REMAND OF CIT CANNOT BE A SUBJECT MATTER OF APPEAL BEFORE CIT(A) I.E., CIT( A) IS NOT THE COMPETENT AUTHORITY TO SIT IN JUDGEMENT ON A LE GAL ISSUE (NON-ALLOWANCE OF DEPRECIATION IN RESPECT OF ESTIMA TED INCOME ARRIVED AT AFTER REJECTING BOOKS OF ACCOUNT U/S 145 OF THE ACT) IN RESPECT OF WHICH A.O. ACTED AS PER THE SPECIFIC DIRECTIONS OF CIT. HENCE, WITHOUT GOING INTO THE M ERITS OF THE CASE, THE APPEAL IS DISMISSED FOR WANT OF JURIS DICTION. 6. IN THIS CASE, THE APPEAL WAS FILED BY THE ASSESS EE AGAINST THE ORDER U/S 263 OF THE ACT ON 2.11.2016 AND THE RELEV ANT ORDER OF THE LD. CIT(A), WAS COMMUNICATED TO THE ASSESSEE ON 28.12. 2016. THEREFORE, THERE IS NO CHANCE FOR THE ASSESSEE TO C OME TO KNOW THE CONTENTS OF THE LD.CIT(A)S ORDER BEFORE THE RECEIP T OF THE ORDER OF THE LD. CIT(A). HENCE, IT IS EVIDENT THAT FOR THE SAKE OF CONDONATION OF DELAY, THE ASSESSEE HAS TAKEN THE SHELTER UNDER THE ORDER OF THE LD. CIT(A), WHICH WAS NOT AVAILABLE TO HIM AT THE TIME OF FILING THE APPEAL. THE REASON EXPLAINED FOR DELAY AS WELL AS THE CONTE NTS OF THE CONDONATION PETITION IS NOTHING BUT AFTER THOUGHT B UT NOT BASED ON ACTUAL FACTS. THE DELAY HAS TO BE EXPLAINED ON DAY TO DAY BASIS. THE EXPLANATION OF THE ASSESSEE FOR NOT PREFERRING APPE AL SINCE THE ASSESSMENT WAS SET ASIDE BY LD. CIT U/S 263 OF THE ACT IS NEITHER ITA NO.434 /VIZAG/2016 K. VENKATA RAJU, ENGINEERS & CONTRACTORS, VIJAYAWAD A 5 CONVINCING NOR SATISFACTORY. THEREFORE, WE DO NOT FIND ANY REASON TO CONDONE THE DELAY, HENCE, THE APPEAL FILED BY THE A SSESSEE IS DISMISSED IN LIMINI. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 23 RD MAY18. SD/- SD/- ( . ) ( . .. . . . . . ' ) (V. DURGA RAO) (D.S. SUNDER SINGH) /JUDICIAL MEMBER /ACCOUNTANT MEMBER # /VISAKHAPATNAM: ' /DATED : 23.05.2018 VG/SPS )# *# /COPY OF THE ORDER FORWARDED TO:- 1. / THE APPELLANT M/S. R. VENKATA RAJU ENGINEERS & CONTRACTORS, D.NO.54-20-6, KANAKADURGA GAZETTED OFFICERS COLONY, ROAD NO.1, GURUNANAK NAGAR, VIJAYAWADA-520008 2. / THE RESPONDENT THE DCIT, CIRCLE-2(1), VIJAYAWA DA 3. + / THE CIT, VIJAYAWADA 4. + ( ) / THE CIT (A), VIJAYAWADA 5. # . , . , # / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM