Seshadri Dall Mill, Guntur V. The Income Tax Officer, Ward-1, , Tenali

ITA 530/VIZ/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3228 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 30-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V RAMA MOHAN
• Keywords: Opportunity of being heard; TDS; Set aside
• Section: 143(3); 40(a)(ia)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM SMC BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER ITA NO. 530 / VIZ /201 9 (ASST. YEAR : 20 14 - 1 5 ) M/S. SESHADRI DALL MILL, D.NO. 32 - 2 - 7, INDUSTRIAL ESTATE, SULTANABAD, TENALI , GUNTUR DISTRICT. V S . IT O , WARD - 1, TENALI . PAN NO. ABUFS 3107 K (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI C.SUBRAHMANYAM, FCA DEPARTMENT BY : SHRI V. RAMA MOHAN, SR. DR DATE OF HEARING : 20 / 0 1 /20 20 . DATE OF PRONOUNCEMENT : 11 / 0 3 /20 20 . O R D E R TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 1 , GUNTUR , DATED 01 /0 8 /201 9 FOR THE ASSESSMENT YEAR 20 14 - 15 . 2. FACTS OF THE CASE, IN BRIEF, ARE THAT ASSESSEE HAS FILED ITS RETURN OF INCOME BY DECLARING TOTAL INCOME OF RS. 5,81,340/ - . THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY UNDER CASS AND ASSESSMENT WAS COMPLETED U/SEC. 143(3) , DATED 07/11/2016 BY DETERMI NI NG THE INCOME AT RS. 12,17,830/ - . SUBSEQ U E NTLY, PR. COMMISSIONER BY EXERCISING HIS POWERS CONFERRED IN HIM 2 ITA NO. 530/VIZ/2019 ( M/S. SESHADRI DALL MILL ) DIRECTED THE ASSESSING OFFICER TO REDO THE ASSESSMENT ON THE LINES INDICATED ABOVE, IN ACCORDANCE WITH LAW & ESTABLISHED PROCEDURE AND AFTER AFFORDING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD BY ORDER DATED 12/02/2018 . SUBSEQU E NTLY, THE ASSESSING OFFICER ISSUED A SHOW - CAUSE NOTICE AND CALLED THE EXPLANATION FROM THE ASSESSEE. THE ASSESSEE VIDE ITS LETTER DATED 15/03/2018 FILED A DETAILED SUBMIS SION. THE ASSESSING OFFICER AF TER CONSIDERING THE EXPLANATION OF THE ASSESSEE AND ALSO BY CONSIDERING THE CASE LAWS RELIED ON BY THE ASSESSEE AND BY FOLLOWING THE JUDGMENT OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. GUJARAT NARMADA VALLEY FERTILISERS CO. LTD. AN AMOUNT OF RS. 20,07,021/ - IS DISALLOWED U/SEC. 40(A)(IA) OF THE ACT ON ACCOUNT OF NON - DEDUCTION OF TDS. 3 . ON APPEAL, LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT ASSESSING OFFICER HAS ONLY PASSED A CONSEQUENTIAL ORDER . N OT ONLY THAT , 263 HAS BEEN CHALLENGED BEFORE THE ITAT, VISAKHAPATNAM IN ITA NO. 396/VIZ/2018, DATED 17/07/2019 IS DISMISSED WITHOUT GOING INTO THE MERITS OF THE CASE . 4 . ON BEING AGGRIEVED, ASSES SEE CARRIED THE MATTER IN APPEAL BEFORE THIS TRIBUNAL. 5. LD.AR HAS SUBMITTED THAT PR.COMMISSIONER BY PASSING THE ORDER U/SEC. 263 SET ASIDE THE ASSESSMENT ORDER AND DIRECTED THE 3 ITA NO. 530/VIZ/2019 ( M/S. SESHADRI DALL MILL ) ASSESSING OFFICER TO REDO THE ASSESSMENT AFTER GIVING OPPORTUNITY, IT MEANS THAT ASSESSING OFFICER HAS TO ADJUDICATE THE CASE AFRESH IN ACCORDANCE WITH LAW AND THEREFORE ASSESSEE HAS EVERY RIGHT TO FILE REGULAR APPEAL AGAINST THE ORDER OF ASSESSING OFFICER AND THE LD. CIT(A) HAS TO ADJUDICATE THE SAME ON MERITS. 6 . ON THE OTHER H AND, LD. DR RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 7 . I HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND ORDERS OF THE AUTHORITIES BELOW. 8 . IN THIS CASE, ORIGINAL ASSESSMENT WAS COMPLETED U/SEC. 143(3) DATED 07/11/2016 . SUBSEQ U E NTLY, PR.COMMISSIONER BY EXERCISING HIS POWERS CONFERRED IN HIM U/SEC. 263 , SET ASIDE THE ORDER PASSED BY THE ASSESSING OFFICER AND DIRECTED HIM TO REDO THE ASSESSMENT AFTER GIVING OPPORTUNITY TO THE ASSESSEE IN ACCORDANCE WITH LAW KEEPING IN VIEW OF THE OBSERVATIONS MADE BY HIM IN EARLIER PARAGRAPHS . FROM THE ABOVE, I FIND THAT PR.COMMISSIONER HIMSELF IS CONFUSED TO GIVE SUCH A DIRECTION , ONE WAY HE DIRECTED THE ASSESSING OFFICER TO REDO THE ASSESSMENT AS PER LAW AFTER GIVING OPPORTUNITY , IN ADDIT ION THAT HE DIRECTED THE ASSESSING OFFICER TO KEEP IN MIND THE INDICATIONS GIVEN BY HIM BEFORE PASSING THE ASSESSMENT ORDER . I N MY OPINION, THE DIRECTION GIVEN BY THE PR.COMMISSIONER IS NOT CLEAR , ONCE ASSESSMENT IS SET ASIDE AND 4 ITA NO. 530/VIZ/2019 ( M/S. SESHADRI DALL MILL ) DIRECTED TO REDO THE ASSESSMENT IN ACCORDANCE WITH LAW AFTER GIVING OPPORTUNITY MEANS IT SHOULD BE A CLEAR DIRECTION , SO HE OUGHT NOT TO HAVE AGAIN DIRECTED THE ASSESSING OFFICER TO FOLLOW HIS INDICATIONS. IN THE PRESENT CASE, THE ASSESSING OFFICER AFTER ISSUING A SHOW - CAU S E N OTICE AND CALLING EXPLANATION FROM THE ASSESSEE AND AFTER CONSIDERING THE SAME , BY FOLLOWING THE JUDGMENT OF THE HON'BLE GUJARAT HIGH COURT HE PASSED THE ORDER IN ACCORDANCE WITH LAW, THEREFORE THE ASSESSING OFFICER HAS DECIDED THE CASE OF THE ASSESSEE ON MERITS . HENCE, THE ASSESSEE IS EVERY RIGHT TO CARRY THE MATTER IN APPEAL, IN SUCH A CASE, THE LD. CIT(A) UNDER OBLIGATION TO DECIDE TH E APPEAL ON MERITS. IN VIEW OF THE ABOVE, I SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) AND DIRECT HIM TO DECIDE THE APP EAL OF THE ASSESSEE ON MERITS AFTER GIVING REASONABLE OPPORTUNITY IN ACCORDANCE WITH LAW. THUS, THIS APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 9. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON TH IS 1 1 T H DAY OF MARCH , 20 20 . S D / - ( V. DURGA RAO ) JUDICIAL MEMBER DATED : 1 1 T H MARCH , 20 20 . 5 ITA NO. 530/VIZ/2019 ( M/S. SESHADRI DALL MILL ) VR/ - COPY TO: 1. THE ASSESSEE M/S. SESHADRI DALL MILL, D.NO. 32 - 2 - 7, INDUSTRIAL ESTATE, SULTANABAD, TENALI, GUNTUR DISTRICT. 2. THE REVENUE - ITO, WARD - 1, TENALI. 3. THE PR. CIT , GUNTUR. 4. THE CIT(A) - 1, GUNTUR. 5. THE D.R . , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.