Aluri Krishna Reddy, Hyd, Hyderabad V. DCIT, Circle-1(1), Hyderabad, Hyderabad

ITA 570/HYD/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 98705 (ITAT-HYDERABAD)
• Duration Of Justice: 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2015
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 19-11-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 07-05-2015
• Court: TRIBUNAL
• Department Lawyers: B KURMI NAIDU
• Assessee Lawyers: V RAGHAVENDRA RAO
• Section: 244A; 234B; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B, HYDERABAD BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER I.T.A. NOS. 570 & 571/HYD/2015 ASSESSMENT YEARS : 2008-09 & 2011-12 ALLURI KRISHNA REDDY, HYDERABAD [PAN: ACHPA5457C] VS THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1(1), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI V . RA GHAVENDRA RAO , AR FOR REVENUE : SHRI B. KURMI NAIDU, DR DATE OF HEARING : 19 - 1 1 - 201 5 DATE OF PRONOUNCEMENT : 02 - 1 2 - 2015 O R D E R PER B. RAMAKOTAIAH, A.M. : THESE TWO APPEALS ARE BY ASSESSEE AGAINST THE ORDE RS OF THE COMMISSIONER OF INCOME TAX (APPEALS)-XI, HYDERABAD DATED 16-02-2015 DISMISSING THE APPEALS IN LIMINE ON THE REASON THAT ASSESSEE HAS NOT PAID THE ADMITTED TAX BEFORE FILIN G THE APPEAL. ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 2. THE LEARNED CIT (APPEALS) OUGHT NOT TO HAVE DI SMISSED THE APPEAL IN LIMINE ON THE GROUND THAT THE ADMITTE D TAX WAS NOT PAID BEFORE FILING THE APPEAL, WITHOUT GIVING AN OP PORTUNITY OF BEING HEARD TO THE APPELLANT TO EXPLAIN HIS CASE. I.T.A. NOS. 570 & 571/HYD/2015 ALLURI KRISHNA REDDY :- 2 -: 3. THE LEARNED CIT (APPEALS) OUGHT TO HAVE APPRECIA TED THAT THERE WAS NO UNDISPUTED TAX PAYABLE, INASMUCH AS, THE ENTIRE ASSESSMENT WAS CHALLENGED ON JURISDICTIONAL GROUNDS. 4. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT (APPEALS) OUGHT TO HAVE APPRECIATED THAT THE REFUND DUE FROM THE DEPARTMENT FOR THE ASSESSMENT YEARS 2010-11 AND 200 7-08 WAS ADJUSTED ON 05.12.2012 AND 30.12.2008 RESPECTIVELY AGAINST THE DEMAND FOR THE ASSESSMENT YEAR UNDER APPEAL WELL BE FORE FILING OF APPEAL BEFORE THE CIT (APPEALS) AND THERE WAS NO UNDISPUTED TAX PAYABLE AS ON THE DATE OF FILING THE APPEAL. GROUND NO. 4 IN ITA NO. 571/HYD/2015 AY. 2011-12 4. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT (APPEALS) OUGHT TO HAVE APPRECIATED THAT THE REFUND DUE FROM THE DEPARTMENT FOR THE ASSESSMENT YEARS 2012-13 AND 201 3-14 WOULD SUFFICE TO MEET ANY UNDISPUTED TAX PAYABLE, I F ANY, FOR THE ASSESSMENT YEAR UNDER APPEAL AND, THEREFORE, THE CI T (APPEALS) OUGHT TO HAVE APPRECIATED THAT THERE WAS NO UNDISPU TED TAX PAYABLE. GROUND NO. 1 IS GENERAL IN NATURE. 2. BEFORE US, LD. COUNSEL FILED THE FOLLOWIN G TABLE OF PAYMENTS OF TAX AND ADJUSTMENTS OF REFUNDS FOR AYS. 2008-09 & 2009-10: TABLE SHOWING PAYMENTS OF TAX AND ADJUSTMENTS OF REFUNDS I. ASSESSMENT YEAR : 2008-09 S.NO. NATURE OF PAYMENT RS. REMARKS 1. AS PER DT. 29-09-2008 87,69,347/- 2. INTEREST U/S. 234A, 234B & 234C 11,13,702/- 3. TOTAL TAX OUTSTANDING ON THE BASIS OF RETURNED INCOME 98,83,049/- 4. PAYMENTS (I) 20,00,000/- DD 03-03-2009 (II) 20,00,000/- THROUGH CHALLAN I.T.A. NOS. 570 & 571/HYD/2015 ALLURI KRISHNA REDDY :- 3 -: (III) 8,39,332/- ADJUSTMENT OF REFUND OF 2007-08 THROUGH ORDER U/S. 154 DT. 30 - 12 - 2008 (IV) 14,90,174/- ADJUSTMENT BY ORDER U/S. 154 IN THE CASE OF AKR CONSTRUCTIONS DT. 16-02-2009 FOR THE ASSESSMENT YEAR 2007-08 (V) 57,97,607/- IT REFUND ORDER ADVICE DT. 05-12- 2012 FROM SBI (VI) 5,80,303/- IT REFUND ORDER ADVICE DT. 05-12- 2012 FROM SBI NOTE ON THE ABOVE: EXCESS ADJUSTMENT OVER TAX DUE AS PER RETURN: 1,27 ,07,376 87,69,347 = 39,38,029/- EXCESS ADJUSTMENT ON TOTAL TAX TAKING INTEREST U/S. 234A, 234B & 234C ALSO INTO ACCOUNT : 30,87, 406/- II. ASSESSMENT YEAR : 2011-12 NOTE ON THE ABOVE: RS. 1. TAX REMAINING PAYABLE AS PER RETURN OF INCOME DA TED 23-09-2012 34,00,580 2. INTEREST REMAINING PAYABLE U/S. 234A, 234B & 234 C 11,45,967 3. TAX WITH INTEREST REMAINING PAYABLE ON THE DATE OF RETURN 45,46,550 (ROUNDED OFF) 4. EXCESS ADJUSTED FOR 2008-09 BY INCOME TAX REFUND ORDER ADVICES DATED 05-12-20012 PREVIOUS PAGE ( TAX BEFORE INTEREST ) 39,38,029 5. -DO- 30,87,406 TAKING INTEREST INTO CONSIDERATION 6. REFUND CLAIM AS PER RETURN FOR ASSESSMENT YEAR 2 012- 13 DT. 23-09-2012 (SAME DATE AS FILED FOR 2011-12) 22,58,560 7. REFUND AS PER 143(1) INTIMATION DATED 04-10-2013 NOT SPECIFIED 8. REFUND AS PER ASSESSMENT ORDER FOR 2012-13 DT. 3 1- 03 - 2015 EXCLUDING INTEREST U/S. 244A 21,30,986 I.T.A. NOS. 570 & 571/HYD/2015 ALLURI KRISHNA REDDY :- 4 -: SELF ASSESSMENT TAX EXCESS ADJUSTED FOR 2008-09 : 3 9,38,029 TAX UNDER PAID FOR 2011-12 : 34,00,500 WITHOUT TAKING INTEREST U/S. 234A, 234B AND 234C IN TO CONSIDERATION, TAX PAYABLE AS PER RETURN FOR 2011-12 IS LESS THAN THE EXCESS- ADJUSTMENT MADE FOR 2008-09. ALTERNATIVELY: EXCESS-ADJUSTMENT OF REFUND AGAINST TAX DUE FOR 200 8-09 INCLUDING INTEREST U/S. 234A, 234B AND 234C : 30,8 7,406 TDS REFUND DUE FOR 2012-13 AS PER RETURNS FILED ON 23-09-2012 ON THE BASIS OF ASSESSMENT ORDER : 21,3 0,986 ---------------- (REFUND DATES BACK TO DATE OF FILING OF RETURN 244A INTEREST HAS ALSO BEEN GRANTED) 52,18,392 ----------------- THIS IS MORE THAN RS. 45,46,550/- INCLUDING INTERES T U/S. 234A, 234B AND 234C. 3. ON 28-07-2015, WHEN THE CASE WAS TAKEN UP THE DR WAS DIRECTED TO VERIFY WHETHER THE ASSESSEES CONTENTIO NS WERE CORRECT OR NOT AND THE CASE WAS ADJOURNED TO 16-11-2015. O N THAT DATE, THE DR SUBMITTED THAT AS PER THE DIRECTIONS OF THE BENCH, A LETTER WAS ADDRESSED TO THE AO ON 28-07-2015 ITSELF, BUT T HERE WAS NO REPLY FROM THE AO. THEREFORE, HE EXPRESSED HIS INA BILITY TO CONFIRM OR DENY THE CONTENTIONS OF ASSESSEE. THE BENCH FEL T THAT THE ITO SHOULD APPEAR WITH RECORDS AND EXPLAIN THEREFORE, T HE CASE WAS ADJOURNED TO 19-11-2015. ON THAT DAY AO WAS PRESEN T, BUT DID NOT PLACE ANY CONTRARY INFORMATION ON RECORD. WE A RE OF THE OPINION THAT ASSESSEES CONTENTIONS ARE CORRECT AND CIT(A) HAS WRONGLY CONSIDERED THAT ASSESSEE HAS NOT PAID THE A DMITTED TAXES. IN VIEW OF THIS, WE ARE OF THE OPINION THAT DISMISS AL OF THE APPEALS BY LD. CIT(A) IN LIMINE IS NOT CORRECT. THEREFORE, THE IMPUGNED ORDERS ARE SET ASIDE AND THE APPEALS BEFORE THE CIT (A) ARE RESTORED I.T.A. NOS. 570 & 571/HYD/2015 ALLURI KRISHNA REDDY :- 5 -: FOR CONSIDERING THE ISSUES ON MERITS. ASSESSEES G ROUNDS ARE CONSIDERED ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE RESULT, APPEALS ARE ALLOWED FOR STATISTIC AL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND DECEMBER, 2015 SD/- SD/- (D. MANMOHAN) (B. RAMAKOTAIAH) VICE PRESIDENT ACCOUNTANT MEMB ER HYDERABAD, DATED 2 ND DECEMBER, 2015 TNMM COPY TO : 1. ALLURI KRISHNA REDDY, 8-2-684/J4, KANAKADURGA TEMPLE LANE, ROAD NO. 12, BANJARA HILLS, HYDERABAD. C/O. I.R. RAO & COMPANY, CHARTERED ACCOUNTANTS, H.N O. 8-3-222/29, C-69, MADHURANAGAR, HYDERABAD. 2. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRC LE- 1(1), POSNET BHAWAN, TILAK ROAD, HYDERABAD. 3. CIT (APPEALS)-XI, HYDERABAD. 4. THE PR. CIT-(CENTRAL), HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6 . GUARD FILE.