Vijaykumar Sharma, Hyderabad V. Income Tax Officer, Ward-8(3), Hyderabad

ITA 506/HYD/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 66499 (ITAT-HYDERABAD)
• Duration Of Justice: 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 11-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M H NAIK
• Assessee Lawyers: P BALAKRISHNA
• Keywords: Unexplained investment; Condonation of delay
• Section: 142(1); 69; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA NOS. 506 & 507/HYD/2012 ASSESSMENT YEAR: 2005-06 VIJAYKUMAR SHARMA, APPELLANT HYDERABAD. (PAN AHAPS1651G) VS. INCOME TAX OFFICER, RESPONDENT WARD 8(3), HYDERABAD APPELLANT BY : SHRI P. BALAKRISHNA RESPONDENT BY : SHRI M.H. NAIK DATE OF HEARING : 09/11/2012 DATE OF PRONOUNCEMENT : 23/11/ 2012 ORDER PER ASHA VIJAYARAGHAVAN, J.M.: BOTH THESE APPEALS PREFERRED BY THE ASSESSEE ARE D IRECTED AGAINST THE RESPECTIVE ORDERS OF THE CIT(A)-III, HY DERABAD DATED 06/03/2012, PASSED U/S 144 OF THE ACT AND U/S 271(1 )(C) OF THE ACT RESPECTIVELY, FOR THE ASSESSMENT YEAR 2005-06. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE IS AN EMPLOYEE WORKING AT MICROSOFT CIBRE TOWERS. THE AO BASED ON THE INFORMATION (ANNUAL INFORMATION RETURNS) ISSUED NOT ICE U/S 142(1) CALLING FOR RETURN OF INCOME FOR THE ASSESSMENT YEA R UNDER CONSIDERATION. SINCE THERE WAS NO RESPONSE FROM THE ASSESSEE AND ITA NOS. 506 & 507/HYD/2012 VIJAYKUMAR SHARMA 2 NO RETURN WAS FILED BY THE ASSESSEE, THE AO COMPLET ED THE ASSESSMENT U/S 144 OF THE ACT ON 28/12/2007 BY ADDI NG INVESTMENT IN SHARES AMOUNTING TO RS. 1,95,300/- IN TCS AS UNE XPLAINED INVESTMENT U/S 69 OF THE ACT. 3. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN AP PEAL BEFORE THE CIT(A), HYDERABAD ON 09/09/2010. 4. THE CIT(A) OBSERVED THAT THE ASSESSMENT WAS COMP LETED U/S 144 ON 28/12/2007, AND THE ASSESSEE HAD TO FILE THE APPEAL ON OR BEFORE 20/12/2008, WITHIN THE DUE DATE, BUT, THE AS SESSEE FILED THE APPEAL ON 09/09/2010 I.E. THERE WAS A DELAY IN FILI NG THE APPEAL. HE FURTHER OBSERVED THAT THERE WAS NO PETITION REQUEST ING FOR CONDONATION OF DELAY ENCLOSED WITH THE APPEAL MEMO. IN THIS CONNECTION, THE CIT(A) REFERRED THE PROVISIONS OF S ECTION 249(3) AND HELD THAT AS PER THE PROVISIONS OF SUB-SECTION (3) OF SECTION 249, THE CONDONATION OF DELAY CAN BE ADMITTED ONLY IF THE AS SESSEE SATISFIED THAT HE PREVENTED BY SUFFICIENT CAUSE FOR NOT FILIN G THE APPEAL WITHIN THE STIPULATED PERIOD/WITHIN DUE DATE. SINCE THE AS SESSEE FAILED TO SATISFY IN THIS CASE, THE APPEAL WAS NOT ADMITTED B Y THE CIT(A). 5. ON MERITS ALSO, THE CIT(A) HELD THAT THERE WAS N O CASE FOR THE ASSESSEE FOR THE REASON THAT THE ASSESSEE FAILED TO APPEAR BEFORE THE AO, EVEN THOUGH, SEVERAL OPPORTUNITIES WERE GIV EN BY THE AO, NO RETURN OF INCOME FILED AND THERE WAS NO RESPONSE FROM THE ASSESSEE. DUE TO NON-COMPLIANCE OF THE ASSESSEE AND THE INVESTMENT AMOUNT TO RS. 1,95,300/- IN TCS BY THE A SSESSEE WAS TREATED AS UNEXPLAINED INVESTMENT U/S 69 OF THE IT ACT AN TOTAL INVESTMENT WAS BROUGHT TO TAX IN THE HANDS OF THE A SSESSEE BY THE ITA NOS. 506 & 507/HYD/2012 VIJAYKUMAR SHARMA 3 ASSESSING OFFICER. THE ASSESSEE FAILED TO FURNISH T HE DETAILS/EVIDENCES BEFORE THE CIT(A) ALSO. HENCE, TH E CIT(A) CONFIRMED THE ACTION OF THE AO AND DISMISSED THE AP PEAL OF THE ASSESSEE EVEN ON MERITS. 6. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 7. THE LEARNED COUNSEL FOR THE ASSESSEE SHRI P. BAL AKRISHNA APPEARED BEFORE US AND PRAYED THAT THE ASSESSEE IS A SALARIED EMPLOYEE, WHO IS REGULARLY FILING THE RETURNS OF IN COME. HE FURTHER SUBMITTED THAT ASSESSMENT WAS COMPLETED U/S 144 OF THE ACT AND THE ASSESSEE WAS AN EMPLOYEE OF MICROSOFT CIBRE TOW ERS, WHO WAS NOT FAMILIAR WITH THE INCOME-TAX ASSESSMENTS AND DU E TO HIS PRE- OCCUPATION OF WORK, HE COULD NOT ATTENDED TO THE SH OW CAUSE NOTICES ISSUED BY THE AO FOR COMPLETION OF THE ASSESSMENT. THE LEARNED COUNSEL ALSO SUBMITTED THAT THE DELAY IN FILING THE APPEAL WAS ALSO DUE TO INADVERTENCE. IN THESE CIRCUMSTANCES, THE LE ARNED COUNSEL FOR THE ASSESSEE PRAYED THAT ONE MORE OPPORTUNITY MAY B E GIVEN TO THE ASSESSEE FOR REPRESENTING HIS CASE. 8. AFTER HEARING THE LEARNED DR AND PERUSING THE RE CORD, WE ARE OF THE VIEW THAT, IN THE INTEREST OF JUSTICE, ONE M ORE OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE TO PRESENT HIS CASE AS THE AO COMPLETED THE ASSESSMENT U/S 144 AND PASSED THE ORD ER EX-PARTE WITHOUT HEARING THE EXPLANATION/ARGUMENTS OF THE AS SESSEE. THEREFORE, WE RESTORE THE MATTER TO THE FILE OF THE CIT(A) AND THE CIT(A) SHALL DECIDE THE APPEAL IN ACCORDANCE WITH L AW AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE AND AO. ITA NOS. 506 & 507/HYD/2012 VIJAYKUMAR SHARMA 4 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 506/HYD/2012. 11. IN THE QUANTUM APPEAL, THE AO MADE THE ADDITION U/S 69 OF THE ACT, ON ACCOUNT OF THE INVESTMENT MADE BY THE ASSES SEE IN SHARES, BY PASSING EX-PARTE ORDER U/S 144 OF THE ACT, WHEN THE ASSESSEE FAILED TO RESPOND THE NOTICES ISSUED BY THE AO WHIL E MAKING ASSESSMENT AND FAILED TO FILE DETAILS/EVIDENCES BEF ORE HIM. 12. THE ASSESSEE PREFERRED THE APPEAL BEFORE THE CI T(A) AGAINST THE ORDER OF THE ASSESSING OFFICER. THE CIT(A) DID NOT ADMIT THE APPEAL AND ALSO DECIDED THE APPEAL ON MERITS DISMIS SING THE APPEAL OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE FAI LED TO FURNISH THE DETAILS/EVIDENCES BEFORE HIM. 13. THEREAFTER, THE AO INITIATED PENALTY PROCEEDING S U/S 271(1)(C) OF THE ACT, ON THE GROUND THAT THE ASSESSEE HAS CON CEALED THE PARTICULARS OF HIS INCOME FOR THE YEAR UNDER CONSID ERATION WHICH IS EVIDENT FROM THE FACT THAT NO RETURN OF INCOME WAS FILED THOUGH HE HAS TAXABLE INCOME. 14. ON APPEAL, THE CIT(A) CONFIRMED THE PENALTY LEV IED BY THE AO U/S 271(1)(C) OF THE ACT, ON THE GROUND THAT THE PE NALTY SUSTAINS SINCE QUANTUM ADDITION WAS NOT DELETED. 15. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. ITA NOS. 506 & 507/HYD/2012 VIJAYKUMAR SHARMA 5 16. WE HAVE HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PERUSED THE RECORD. WE ARE OF THE VIEW THAT SINCE THE QUANT UM APPEAL ITSELF HAS BEEN REMITTED TO THE FILE OF THE CIT(A) FOR DEC IDING AFRESH, THE PENALTY APPEAL IS ALSO REMITTED TO THE FILE OF ASSE SSING OFFICER TO DECIDE THE SAME ALONG WITH QUANTUM APPEAL. 17. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. 18. TO SUM UP, BOTH THE APPEALS UNDER CONSIDERATIO N ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 23 RD NOVEMBER, 2012. SD/- SD/- (CHANDRA POOJARI) (ASHA VIJAYARAGH AVAN) ACCOUNTANT MEMBER JUDICIAL MEMBE R HYDERABAD, DATED: 23 RD NOVEMBER, 2012. KV COPY TO:- 1) VIJAYKUMAR SHARMA, MICROSOFT INDIA R&D PVT. LTD., MICROSOFT CAMPUS, GACHIBOWLI, HYDERABAD. 2) ITO, WARD-8(3), HYDERABAD.. 3) THE CIT (A)-III, HYDERABAD 4) THE CIT-II, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDE RABAD.