T. Janaki Ramana, Hyderabad, Hyderabad V. ITO, Ward-6(1), Hyderabad, Hyderabad

ITA 709/HYD/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2231 (ITAT-HYDERABAD)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 25-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N SWAPNA
• Assessee Lawyers: T CHAITANYA KUMAR
• Keywords: Unexplained cash credit; Peak credit
• Section: 234B; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B (SMC), HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER I.T.A. NO. 709/HYD/2017 ASSESSMENT YEAR: 2009-10 T. JANAKI RAMANA, VIJAYAWADA [PAN: ADWPT8283D] VS THE INCOME TAX OFFICER, WARD-6(1), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI T. CHAITANYA KUMAR, AR FOR REVENUE : SMT. N. SWAPNA, DR DATE OF HEARING : 28-12-2017 DATE OF PRONOUNCEMENT : 28-12-2017 O R D E R THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF TH E COMMISSIONER OF INCOME TAX (APPEALS)-4, HYDERABAD, DATED 13-11-2015. 2. THE GROUNDS RAISED BY ASSESSEE ARE AS UNDER: 1) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS ) IS ERRONEOUS, ILLEGAL AND HELD CONTRARY TO THE FACTS OF THE INSTANT CASE. 2) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) IS ERRED IN ENHANCING THE QUANTUM ASSESSMENT WITHOUT GIVING ANY PROPER SH OW CAUSE NOTICE. 3) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN ENHANCING THE INCOME OF THE APPELLANT FROM CONTRACT RECEIPTS FOR AN AMOUNT OF RS.69.61 LAKHS. 4) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN DETERMINING THE TOTAL INCOME AT RS.90,30,955/- WITHOUT GIVING A NY OPPORTUNITY TO THE APPELLANT. I.T.A. NO. 709/HYD/2017 :- 2 - : 5) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN ENHANCING THE INCOME OF THE APPELLANT BY DISALLOWING THE EXPE NDITURE FOR AN AMOUNT OF RS.17,78,965/- WITHOUT GIVING ANY OPPORTUNITY. 6) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN CHARGING INT EREST U/S 234A AT RS.1,47,985/- AND 234B AT RS.23,97,357/-. 7) ANY OTHER GROUNDS/GROUND MAY BE URGED AT THE TIM E OF HEARING. 3. BRIEFLY STATED, ASSESSEE IS AN INDIVIDUAL ENGAGED IN EXECUTING THE CONTRACTS FILED HIS RETURN OF INCOME FOR THE AY. 200 9-10 ON 10- 12-2009 BY ADMITTING AN INCOME OF RS. 1,90,990/- AND AGRICULTURAL INCOME OF RS. 1,00,000/-. THE CASE WAS SELECTED FO R SCRUTINY AND NOTICES WERE ISSUED. HOWEVER, SINCE THERE WAS NO RE SPONSE FROM ASSESSEE, THE ASSESSING OFFICER (AO) HAS COMPLETED TH E ASSESSMENT EX-PARTE BASING ON THE MATERIAL AVAILABLE ON RECORD. WHILE D OING SO, THE AO ADDED AN AMOUNT OF RS. 3,55,793/- BEING 20 % OF THE OTHER EXPENSES AND RS. 20,06,471/- BEING THE PEAK CREDITS AS UNEXPLAINED CASH CREDIT. 4. IN AN APPEAL BEFORE THE LD.CIT(A), NONE APPEARED AND CIT(A) WITHOUT GIVING ANY NOTICE FOR ENHANCEMENT, ENHANCED TH E ADDITIONS OF CASH CREDITS AND EXPENDITURE DISALLOWED. HENCE, T HE PRESENT APPEAL. 5. IT WAS THE SUBMISSION OF THE LD. COUNSEL THAT ASSESSE E HAS SHIFTED TO VIJAYAWADA AND HE COULD NOT REPRESENT PROPER LY BEFORE THE AUTHORITIES. IT WAS SUBMITTED THAT THE DEPOSITS IN BANK A CCOUNT ARE HIS RECEIPTS FROM CONTRACTS AND ASSESSEE CAN EXPLA IN, IF OPPORTUNITY IS GIVEN. I.T.A. NO. 709/HYD/2017 :- 3 - : 6. LD.DR, HOWEVER, SUBMITTED THAT ASSESSEE HAD BEEN GIV EN SUFFICIENT OPPORTUNITIES AND THERE WAS NO RESPONSE. 7. AFTER CONSIDERING THE RIVAL CONTENTIONS, I AM OF THE OPINION THAT THE ORDER OF LD.CIT(A) CANNOT BE UPHELD AS THE LD. CIT(A) WITHOUT GIVING ANY ENHANCEMENT NOTICE INCREASED THE AMO UNTS OF ADDITION, THAT TOO ARBITRARILY. BEFORE THE AO ALSO ASSE SSEE COULD NOT REPRESENT AND ASSESSMENT WAS EX-PARTE U/S 144 . SINCE ASSESSEE HAS SHIFTED TO VIJAYAWADA AND PENALTY ORDER WAS PASSED BY AO AT VIJAYAWADA (WHICH WAS CONTESTED SEPARATELY) , I AM OF THE OPINION THAT ASSESSEE SHOULD BE GIVEN DUE OPPORTUNIT Y. LD. COUNSEL UNDERTOOK TO COMPLY WITH THE NOTICES. KEEPING THAT IN MIND, I SET ASIDE THE ORDERS OF AO AND CIT(A) AND RES TORE THE ASSESSMENT TO THE FILE OF AO, FOR FRESH CONSIDERATION AFTER GIVING DUE OPPORTUNITY TO ASSESSEE. 8. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH DECEMBER, 2017 UPON CONCLUSION OF HEARING SD/- (B. RAMAKOTAIAH) ACCOUNTANT MEMBER HYDERABAD, DATED 28 TH DECEMBER, 2017 TNMM I.T.A. NO. 709/HYD/2017 :- 4 - : COPY TO : 1. SHRI T. JANAKI RAMANA, VIJAYAWADA C/O. SHRI T. CHAITANYA KUMAR, ADVOCATE, FLAT NO. 102, GOURI APARTMENT, URDU LANE, HIMAYAT NAGAR, HYDERABAD. 2. THE INCOME TAX OFFICER, WARD-6(1), HYDERABAD. 3. CIT (APPEALS)-4, HYDERABAD. 4. PR.CIT-6, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.