Yalamati Venkata Ravichandra Babu, Kakinada V. ITO (International Taxation), Kakinada

ITA 510/VIZ/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6605 (ITAT-VISAKHAPATNAM)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 09-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T SATYANANDAM
• Assessee Lawyers: P PRABHAKARA MURTHY
• Keywords: Capital asset; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , HONBLE ACCOUNTANT MEMBER ITA NO. 510 / VIZ /201 7 (ASST. YEAR : 20 14 - 15 ) YALAMATI VENKATA RAVI CHANDRA BABU, S/O YALAMATI SIVASANKAR, D.NO. 70 - 15 - 9/2, SURESHNAGAR, KAKINADA, E.G. DISTRICT. V S . ITO (INTERNATIONAL TAXATION) , KAKINADA . PAN NO. AMRPB 2853 M (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI P. PRABHAKARA MURTHY ADV. , DEPARTMENT BY : SHRI T. SATYANANDAM SR. DR DATE OF HEARING : 02 / 01 /201 8 . DATE OF PRONOUNCEMENT : 05 / 01 /201 8 . O R D E R PER V. DURGA RAO, JUDICIAL MEMBER TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 10 , HYDERABAD , DATED 29 /0 5 /201 7 FOR THE ASSESSMENT YEAR 20 14 - 15 . 2. THERE IS A DELAY OF 03 DAYS IN FILING OF THIS APPEAL. THE ASSESSEE HAS FILED AN AFFIDAVIT , WHERE IN HE EXPLAINED IN DETAIL FOR NON - FILING OF THE APPEAL IN TIME DUE TO CIRCUMSTANCES BEYOND OF HIS CONTROL. WE HAVE GONE THROUGH THE AFFIDAVIT FILED BY THE ASSESSEE 2 ITA NO. 510 /VIZ/2017 ( YALAMATI VENKATA RAVI CHANDRA ) AND FIND THAT THE REASONS FOR NON - FILING OF THE APPEAL IN TIME ARE SUFFICIENT CAUSE T O CONDONE THE DELAY. ACCORDINGLY, DELAY IS CONDONED. 3 . SO FAR AS MERITS OF THE CASE IS CONCERNED, THE ASSESSEE HAS PURCHASED A VACANT SITE SITUATED IN THE VICINITY OF KAKINADA MUNICIPAL CORPORATION FROM NON - RESIDENT SMT. DUGGIRALA SAILAJA THROUGH POWER OF ATTORNEY HOLDER . ACCORDING TO THE ASSESSING OFFICER, ASSESSEE HAS PURCHASED A CAPITAL ASSET FROM NON - RESIDENT AND AS PER THE PROVISIONS OF SECTION 195 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'ACT'), THE ASSESSEE IS UNDER OBLIGATION TO DEDUCT TDS. AS ASSESSEE HAS NOT DEDUCTED TDS, THE ASSESSING OFFICER TREATED THE ASSESSEE AS ASSESSEE IS IN DEFAULT UNDER SECTION 201 AND ALSO LEVIED PENALTY UNDER SECTION 201(1A) OF THE ACT. 4 . THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD.CIT(A). THOUGH, LD. CIT(A) HAS GIVEN FIVE OPPORTUNITIES , ASSESSEE FAILED TO UTILIZE THE SAME , THEREFORE LD. CIT(A) CONFIRMED THE ORDER OF THE ASSESSING OFFICER. 5. ON BEING AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE TR IBUNAL. 3 ITA NO. 510 /VIZ/2017 ( YALAMATI VENKATA RAVI CHANDRA ) 6 . LD. C OUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT ASSESSEE HAS REQUESTED THE NON - RESIDENT, WHO IS THE SELLER OF THE PROPERTY , TO COMPLY WITH THE TDS PROVISIONS. MEANWHILE, ASSESSEE IS IN THE PROCESS OF COLLECTING THE RELEVANT MATERIAL , LD. CIT(A) PASSED AN EXPARTE ORDER. HE FURTHER SUBMITTED THAT SELLER HA S ALREADY DEDUCTED TDS AND PAID TAXES THEREON; NOW ALL THE MATERIAL IS AVAILABLE WITH THE ASSESSEE AND SUBMITTED THAT ONE MORE OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE TO SUBSTANTIATE HIS CASE BEFORE THE LD. CIT(A). 7 . ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE HAS SUBMITTED THAT ASSESSEE HAS NOT A T ALL APPEARED BEFORE THE LD.CIT(A) ALONG WITH RELEVANT MATERIAL AND THEREFORE, NO FURTHER OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE. 8 . WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND ORDERS OF THE AUTHORITIES BELOW. 9. THE ONLY ISSUE INVOLVED IN THIS APPEAL IS NON - DEDUCTION OF TDS AS PER THE PROVISIONS OF SECTION 195 OF THE ACT. THE CASE OF THE ASSESSEE IS THAT SELLER OF THE PROPERTY, WHO IS NON - RESIDENT, HAS ALREADY COMPLIED WITH THE PROVISIONS OF INCOME TAX ACT AND ALL TH E RELEVANT MATERIAL IS AVAILABLE WITH H IM . HE ALSO FILED INCOME TAX DETAILS OF THE SELLER OF THE PROPERTY BEFORE US. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE , WE ARE OF THE OPINION 4 ITA NO. 510 /VIZ/2017 ( YALAMATI VENKATA RAVI CHANDRA ) THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESS EE TO SUBSTANTIATE HIS CASE BEFORE THE LD. CIT(A). THEREFORE, WE SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) AND DIRECT HIM TO CONSIDER THE ADDITIONAL EVIDENCE WHICH IS TO BE FILED BY THE ASSESSEE AND PASS ORDERS IN ACCORDANCE WITH LAW. 10 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON TH IS 05 TH DAY OF JAN . , 201 8 . SD/ - SD/ - ( D.S. SUNDER SINGH ) ( V. DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 05 TH JANUARY , 201 8 . VR/ - COPY TO: 1. THE ASSESSEE - YALAMATI VENKATA RAVI CHANDRA BABU, S/O YALAMATI SIVASANKAR, D.NO. 70 - 15 - 9/2, SURESHNAGAR, KAKINADA, E.G. DISTRICT. 2. THE REVENUE - ITO (INTERNATIONAL TAXATION), KAKINADA. 3. THE CIT (IT & TP), HYDERABAD. 4. THE CIT(A) - 10, HYDERABAD. 5. THE D.R . , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.