S. Yellaiah, Hyd, Hyderabad V. ACIT, Central Circle-5 Hyd, Hyderabad

ITA 568/HYD/2015

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0316 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 07-05-2015
• Court: TRIBUNAL
• Assessee Lawyers: P MURALI MOHAN RAO

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A, HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER I.T.A. NO. ASST. YEAR APPELLANT RESPONDENT 567/HYD/2015 2006 - 07 S. YELLAIAH ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-5, HYDERABAD 568/HYD/2015 2007 - 08 569/HYD/2015 2009 - 10 FOR ASSESSEE : P. MURALI MOHAN RAO , A R FOR REVENUE : S HRI PRABHAT KUMAR GUPTA , DR DATE OF HEARING : 2 3 - 0 7 - 201 5 DATE OF PRONOUNCEMENT : 29 - 0 7 - 2015 O R D E R PER B. RAMAKOTAIAH, A.M. : THESE THREE APPEALS BY ASSESSEE ARE AGAINST THE SE PARATE BUT SIMILAR ORDERS PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-12, HYDERABAD DATED 31-03-2015 DISMISSING THE APPEALS O F ASSESSEE AS NOT MAINTAINABLE. ASSESSEE RAISED THE GROUNDS STATING THAT ASSESSEE HAS REQUESTED THE DEPARTMENT TO APPROPRIATE ADMITTED TA XES FROM OUT OF THE CASH OF RS. 220 LAKHS SEIZED FROM ASSESSEE AND THE FIRM. IN THE COURSE OF PRESENT PROCEEDINGS, ASSESSEE ALSO RAISED ADDITI ONAL GROUNDS THAT ASSESSEE HAS PAID ADMITTED TAX DUE AND AN OPPORTUNI TY MAY BE GIVEN TO ASSESSEE TO CONSIDER THE APPEAL ON MERITS. 2. LD. COUNSEL SUBMITTED THAT ASSESSEE HAS FILED RE TURNS IN THESE ASSESSMENT YEARS ADMITTING CERTAIN INCOMES AND ASSE SSEE ALONG WITH I.T.A. NOS. 567, 568 & 569/HYD/2015 SHRI S. YELLAIAH :- 2 -: OTHER GROUP FILED SIMILAR APPEALS BEFORE CIT(A), A S ASSESSING OFFICER (AO) MADE ADDITIONS AND RAISED DEMANDS. EVEN THOUGH SEI ZED CASH WAS AVAILABLE WITH THE DEPARTMENT, NO AMOUNT WAS ADJUST ED THEREBY PUTTING ASSESSEE TO INCONVENIENCE. REFERRING TO LD. CIT(A) S ORDER, IT WAS SUBMITTED THAT IN ASSESSEES OWN CASE AN AMOUNT OF RS. 16 LAKHS WAS SEIZED AND THE AMOUNT OF ADMITTED TAX ON THE RETURN S FILED WAS ONLY RS. 17,04,190/-. ASSESSEES REQUEST EARLIER WAS THAT A MOUNT OF RS. 220 LAKHS SEIZED FROM THE FIRM SHOULD BE ADJUSTED TOWAR DS THE TAX BUT SINCE AN AMOUNT OF RS. 16 LAKHS WAS ITSELF SEIZED FROM AS SESSEE FROM HIS RESIDENTIAL PREMISES, ASSESSEE PAID AN AMOUNT OF RS . 1,05,000/- SUBSEQUENTLY, AND IT IS THE REQUEST THAT THE THESE APPEALS MAY BE RESTORED TO THE FILE OF CIT(A) TO CONSIDER IT ON ME RITS. HE RELIED ON VARIOUS CASE LAW IN SUPPORT OF THE CONTENTION THAT LD. CIT(A) CAN ADMIT THE APPEALS ONCE ADMITTED TAX WAS PAID. 3. LD.DR HOWEVER, OBJECTED TO ASSESSEES CONTENTION S AND RELIED ON CIT(A)S ORDER THAT SEIZED CASH CANNOT BE ADJUSTED TOWARDS ADMITTED TAX. EVEN OTHERWISE, IF ASSESSEE HAS REMITTED THE TAX SU BSEQUENTLY, THE APPEAL WOULD BE DEEMED TO HAVE BEEN FILED ON THAT D AY WHEN TAXES HAVE BEEN PAID AS PER THE PROVISIONS OF THE ACT. 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PER USED THE RECORD. THERE IS EVIDENCE ON RECORD, AS STATED BY THE AO IN ORDER FOR AY 2009-10 THAT AN AMOUNT OF RS. 16 LAKHS HAS BEEN SEIZED IN A SSESSEES OWN CASE AND IT WAS SUBMISSION THAT THIS AMOUNT WAS REQUESTE D TO BE ADJUSTED TOWARDS ASSESSEES ADMITTED TAX. NOTHING WAS DONE BY THE AO AS SEEN FROM THE ORDERS. ASSESSEE NOW CONTENDS THAT ENTIRE ADMITTED TAX STANDS DISCHARGED AS AMOUNT OF RS. 16 LAKHS WAS WITH DEPAR TMENT AND AN AMOUNT OF RS. 1,05,000/- WAS PAID SUBSEQUENTLY. FU RTHER, AS SEEN FROM THE ORDERS OF THE CIT(A), HE EXTRACTED THE ORDER IN THE CASE OF R. RAMA I.T.A. NOS. 567, 568 & 569/HYD/2015 SHRI S. YELLAIAH :- 3 -: KRISHNA, A THIRD PERSON CASE IN REJECTING THE ASSES SEES APPEALS. THERE IS NO DISCUSSION IN THE ORDERS OF THE AMOUNT OF TAXES TO BE PAID. THERE SEEMS TO BE NO OPPORTUNITY GIVEN TO ASSESSEE ALSO W ITH REFERENCE TO PAYMENT OF TAXES, AS HEARINGS WERE TAKEN UP OF 20-0 3-2015 AND 25-03- 2015 AND ORDER WAS PASSED ON 31-03-2015. IN VIEW O F THIS, WE ARE OF THE OPINION THAT OPPORTUNITY SHOULD BE GIVEN TO ASSESS EE TO SATISFY THAT THE TAXES HAVE BEEN PAID AND IN CASE OF DELAY, ASSESSEE SHOULD FILE NECESSARY CONDONATION PETITIONS, WHICH SHOULD BE CONSIDERED B Y THE CIT(A). 5. LD. CIT(A) IS ALSO DIRECTED TO CONSIDER THE FOLL OWING CASE LAW RELIED ON BY ASSESSEE BEFORE US, IN EXAMINING ASSESSEES REQUEST/CONTENTIONS. I. SMT. CH. NIVEDITA REDDY VS. DCIT-6(1), HYDERABAD; [ IT(SS)A NO. 90/HYD/02]; II. M/S. KHAITAN TIBREWALA ELECTRICALS LTD., VS. ACIT [ IT(SS)A NO. 283/HYD/97]; III. MAYFAIR BUILDERS & DEVELOPERS VS. DEPUTY COMMISSION ER OF INCOME TAX (2008) [114 ITD 147 (PUNE)]; IV. SHAMRAJ MOORJANI VS. DEPUTY COMMISSIONER OF INCOME TAX (2005) 2 SOT 321 (HYD); V. J.K. CHATURVEDI VS. ASST. COMMISSIONER OF INCOME TA X [82 TIJ [(AHDL 284: (2004) 3 SOT 456)]; VI. ANANT R. THAKORE VS. ASST. COMMISSIONER OF INCOME T AX (2006) 5 SOT 298 (MUMBAI). 6. IN ORDER TO CONSIDER THE ISSUE AFRESH BY THE LD. CIT(A), THE IMPUGNED ORDERS IN RESPECTIVE ASSESSMENT YEARS ARE SET ASIDE AND THE I.T.A. NOS. 567, 568 & 569/HYD/2015 SHRI S. YELLAIAH :- 4 -: MEMORANDUM OF APPEALS ARE RESTORED BEFORE THE CIT(A ) FOR FRESH CONSIDERATION. 7. IN THE RESULT, ALL THE ASSESSEES APPEALS ARE AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JULY, 2015 SD/- SD/- (SAKTIJIT DEY) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUN TANT MEMBER HYDERABAD, DATED 29 TH JULY, 2015 TNMM COPY TO : 1. SHRI S. YELLAIAH, HYDERABAD. C/O. P. MURALI & CO ., CHARTERED ACCOUNTANTS, 6-3-655/2/3, 1 ST FLOOR, SOMAJIGUDA, HYDERABAD. 2. THE ASST. COMMISSIONER OF INCOME TAX, CENTRAL CI RCLE-5, HYDERABAD. 3. CIT(APPEALS)-12, HYDERABAD. 4. THE PR. CIT (CENTRAL), HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.