Gudapati Vinay Kumar , Visakhapatnam V. The ITO, Visakhapatnam

ITA 490/VIZ/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2234 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 year(s) 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 09-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Keywords: Revised return
• Section: 143(3); 147; 148

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. 490 /VIZ/201 6 ( / ASSESSMENT YEAR : 20 08 - 09 ) GUDAPATI VINAY KUMAR D.NO.39 - 4 - 20 MURALINAGAR VISAKHAPATNAM [PAN : AJAPG6424B ] VS. INCOME TAX OFFICER WARD - 4 (2) VISAKHAPATNAM ( / APPELLANT) ( / RESPONDENT) / APPELLANT BY : SHRI G.V.N.HARI , AR / RESPONDENT BY : SMT SUMAN MALIK, DR / DATE OF HEARING : 1 4 . 0 6 . 201 9 / DATE OF PRONOUNCEMENT : 19 .06 . 201 9 / O R D E R P ER SHRI 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)] - 2, VISAKHAPATNAM VIDE ITA NO.200/2015 - 16/CIT(A) - 2/W - 4(2)/VSP/2016 - 17 DATED 05.10.2016 FOR THE A.Y.2008 - 09. 2 I.T.A. NO . 490 /VIZ/201 6 GUDAPATI VINAY KUMAR , VISAKHAPATNAM 2. IN THIS CASE, THE ASSESSEE HA S FILED THE RETURN OF INCOME FOR THE A.Y.2008 - 09 ON 31.07.2008 DECLARING TOTAL INCOME OF RS.1,77,021/ - BEFORE RANGE - 16, HYDERABAD. THE ACIT, CIRCLE - 4(1) HAS ISSUED THE NOTICE U/S 147 OF THE ACT ON 18.11.2013 FOR REOPENING THE ASSESSMENT. THE ASSESSEE FIL ED THE REVISED RETURN OF INCOME FOR THE A.Y.2008 - 09 BEFORE THE ACIT, CIRCLE - 4(1), VISAKHAPATNAM ON 02.01.2014 DECLARING THE SAME INCOME OF RS.1,77,021/ - . LATER ON THE CASE WAS SELECTED FOR SCRUTINY AND THE ASSESSMENT WAS COMPLETED U/S 143(3) R.W.S. 147 O N TOTAL INCOME OF RS.45,26,486/ - . IN THE REASSESSMENT THE AO TAXED THE CAPITAL GAINS RELATING TO SALE OF PROPERTY ADMEASURING 2904 SQ.YDS OF SITE FOR A CONSIDERATION OF RS.72,60,000/ - AND REGISTERED IN S.R.O. GAJUWAKA, VISAKHAPATNAM VIDE DOCUMENT NO.3397/2 007 DATED 14.06.2007. 3. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE WENT ON APPEAL BEFORE THE CIT(A) AND DISPUTED THE VALIDITY OF ISSUE OF NOTICE U/S 148 AS WELL AS THE MERITS OF THE CASE. THE LD.CIT(A) UPHELD THE VALIDITY OF ISSUE OF NOTICE U/ S 148 AND ALLOWED THE APPEAL OF THE ASSESSEE PARTLY ON QUANTUM. 4. AGAINST THE ORDER OF THE LD.CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. DURING THE APPEAL HEARING, THE LD.AR INVITED OUR ATTENTION TO 3 I.T.A. NO . 490 /VIZ/201 6 GUDAPATI VINAY KUMAR , VISAKHAPATNAM PAGE NO.18 OF THE PAPER BOOK FILED BY THE DEPA RTMENT, WHEREIN, THE REVENUE HAS FURNISHED THE REASONS FOR REOPENING THE ASSESSMENT. AS PER THE REASONS RECORDED IN THE SATISFACTION NOTE, IT WAS OBSERVED THAT THE ASSESSEE FILED THE RETURN OF INCOME WITH THE ITO, WARD - 16(2), HYDERABAD AND THE ACIT, CIRC LE - 4(1) HAS REQUESTED FOR TRANSFER OF THE JURISDICTION FROM ITO, WARD - 16(2), HYDERABAD TO ACIT, CIRCLE - 4(1), VISAKHAPATNAM. PENDING ISSUE OF NOTIFICATION TRANSFERRING THE JURISDICTION, THE ACIT, CIRCLE - 4(1) HAD ISSUED THE NOTICE U/S 148 WHICH IS PLACED IN PAGE NO.22 OF THE PAPER BOOK. THE LD.AR ARGUED THAT ACIT, CIRCLE - 4(1) HAD ISSUED NOTICE U/S 148 WITHOUT HAVING JURISDICTION. HENCE, REQUESTED TO QUASH THE NOTICE ISSUED U/S 148 AND ALLOW THE APPEAL OF THE ASSESSEE. 5. ON THE OTHER HAND, THE LD.DR SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED ON RECORD. IN THIS CASE, THE ASSESSEE HAD FILED THE ORIGINAL RETURN OF INCOME BEFORE THE RANGE - 16, HYDERABAD AND THE PAN WAS LYING WITH THE I TO - WARD - 16(2), HYDERABAD. AS PER THE RETURN OF INCOME, THE ASSESSEE IS RESIDING AT PLOT NO.104, ROAD NO.1, JUBILEE HILLS, HYDERABAD AND THE TERRITORIAL 4 I.T.A. NO . 490 /VIZ/201 6 GUDAPATI VINAY KUMAR , VISAKHAPATNAM JURISDICTION VESTS WITH RANGE - 16, HYDERABAD, BUT NOT WITH ACIT - 4(1), VISAKHAPATNAM. THERE IS SEPARATE P R.COMMISSIONER / COMMISSIONER FOR RANGE - 16, POSTED AT HYDERABAD TO LOOK AFTER RANGE16. FOR THE PURPOSE OF ASSUMING HIS JURISDICTION THE ASSESSEES CASE REQUIRED TO BE TRANSFERRED TO ACIT - 4(1), VISAKHAPATNAM U/S 127 OF THE ACT BY A SEPARATE NOTIFICATION. IN THIS CASE, THE LD.AR ARGUED THAT THERE WAS NO SUCH ORDER PASSED BY THE PR.CIT/CIT, HYDERABAD / VISAKHAPATNAM ASSIGNING THE JURISDICTION TO ACIT, CIRCLE - 4(1), VISAKHAPATNAM FROM ITO, WD - 16(2), HYDERABAD. THE A CIT - 4(1) HAS RECORDED THE REASONS FOR REOPE NING ASSESSMENT ON 21.10.2013 WHICH WAS APPROVED BY THE ADDL.CIT, RANGE - 4, VISAKHAPATNAM. AS ON THE DATE OF RECORDING THE REASONS FOR ESCAPEMENT OF INCOME, NEITHER THE ACIT, CIRCLE - 4(1) NOR THE ADDL.CIT, VISAKHAPATNAM HAVE JURISDICTION ON THE ASSESSEE TO E XERCISE THE POWERS U/S 147, HENCE, THE VERY BASIS OF REOPENING THE ASSESSMENT IS INVALID. SIMILARLY ON 18.11.2013, THE ACIT, CIRCLE - 4(1), VISAKHAPATNAM HAD ISSUED THE NOTICE U/S 148 AND THERE IS NO EVIDENCE TO SHOW THAT THE CONCERNED PR.CIT PASSED THE ORD ER U/S 127 GIVING THE JURISDICTION OF G.VINAY KUMAR WHO IS RESIDING AT JUBILEE HILLS, HYDERABAD TO THE ACIT CIRCLE - 4(1). VISAKHAPATNAM. FOR A QUERY FROM THE BENCH, THE LD.DR SUBMITTED A COPY OF THE LETTER DATED 15.02.2019 ADDRESSED TO THE 5 I.T.A. NO . 490 /VIZ/201 6 GUDAPATI VINAY KUMAR , VISAKHAPATNAM SENIOR AUTHORIZED REPRESENTATIVE, ITAT, VISAKHAPATNAM STATING THAT NO ORDER U/S 127 IS AVAILABLE TRANSFERRING THE CASE OF THE ASSESSEE FROM HYDERABAD TO VISAKHAPATNAM. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE ACIT, CIRCLE - 4(1) HAS WRONGLY ASSUMED THE JURISDICT ION ON THE ASSESSEE. SINCE THE NOTICE U/S 148 WAS ISSUED WITHOUT HAVING JURISDICTION, THE SAME IS UNSUSTAINABLE, HENCE, QUASHED AND THE CONSEQUENT ASSESSMENT IS ANNULLED. THE APPEAL OF THE ASSESSEE ON THIS GROUND IS ALLOWED. 7. SINCE WE HAVE QUASHED THE NOTICE AND ANNULLED THE ASSESSMENT, WE CONSIDER IT IS NOT NECESSARY TO ADJUDICATE THE REMAINING GROUNDS RAISED BY THE ASSESSEE IN THIS APPEAL. 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH JUNE 2 019. SD/ - SD/ - ( . ) ( . . ) (V. DURGA RAO) ( D.S. SUNDER SINGH ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM /DATED : 19 .06.2019 L.RAMA, SPS 6 I.T.A. NO . 490 /VIZ/201 6 GUDAPATI VINAY KUMAR , VISAKHAPATNAM / COPY OF THE ORDER FORWARDED TO: - 1. / THE ASSESSEE - GUDAPATI VINAY KUMAR , D.NO.39 - 4 - 20, MURALINAGAR VISAKHAPATNAM 2. / THE REVENUE INCOME TAX OFFICER, WARD - 4(2), VISAKHAPATNAM 3. THE COMMISSIONER OF INCOME TAX - 2 , VISAKHAPATNAM 4. THE COMMISSIONER OF TAX (APPEALS) - 2 , VISAKHAPATNAM 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM