Dr B.Siva Prasad, Hyderabad V. ACIT, Hyderabad

ITA 768/HYD/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3198 (ITAT-HYDERABAD)
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-06-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 26-05-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 11-06-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VASUNDHRA SINHA
• Assessee Lawyers: V RAGHU RAM
• Keywords: Unexplained investment; Valuation report; Ignorance of law
• Section: 143(3); 54F; 54; 263

Judgement Text

ITA NOS.493 &768/HYD/2009 SRI B. SIVA PRASAD, HYD. 1 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI AKBER BASHA, ACCOUNTANT MEMBER ITA NOS.493/HYD/07 & 768/HYD/09 : ASTT. YEA RS: 2002-03 SHRI B. SIVA PRASAD, HYDERABAD. PAN: ADXPB2518E VS THE ACIT, CIR-4(1), HYDERABAD. (APPELLANT) (RESPONDENT) APPELLANT BY : SRI V.RAGHU RAM RESPONDENT BY : SMT. VASUNDHRA SINHA O R D E R PER AKBER BASHA, ACCOUNTANT MEMBER: ITA NO. 493/HYD/07 FILED BY THE ASSESSEE IS DIRECT ED AGAINST THE ORDER UNDER SECTION 263 OF THE CIT, HYDERABAD DATED 14-3-2007 AND ITA NO. 768/HYD/09 IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-V, HYDERABAD DATED 7-3-2009, RELATED TO THE ASSESSMENT PROCEEDIN GS UNDER S.143 [3] OF THE ACT PURSUANT TO THE DIRECTIONS OF THE COMMISSIO NER UNDER S.263 OF THE ACT AND BOTH THESE APPEALS ARE PERTAINING TO THE AS SESSMENT YEAR 2002-03. SINCE COMMON & IDENTICAL ISSUES ARE INVOLVED IN THE SE APPEALS, THESE ARE HEARD, TAKEN UP TOGETHER AND DISPOSED OFF BY THIS C OMBINED ORDER FOR THE SAKE OF CONVENIENCE. 2. GROUNDS RAISED IN ITA NO.493/HYD/07 READ AS FOLLO WS:- ITA NOS.493 &768/HYD/2009 SRI B. SIVA PRASAD, HYD. 2 1. THE ORDER OF THE LEARNED CIT PASSED UNDER SECTIO N 263 IS ERRONEOUS BOTH ON FACTS AND IN LAW. 2. THE LEARNED CIT OUGHT TO HAVE APPRECIATED THE F ACT HAT THE REFERENCE TO VALUATION CELL IS MADE IN A ROUTINE MA NNER WITHOUT RECORDING ANY SATISFACTION REGARDING INVESTMENT OVE R AND ABOVE DISCLOSED IN THE RETURN OF INCOME AND THEREBY ERRED IN HOLDING THAT THERE IS AN ERROR IN NOT MAKING ADDITION ON TH E BASIS OF SUCH VALUATION REPORT. 3. THE LEARNED CIT OUGHT TO HAVE APPRECIATED THE FA CT THAT THE SOURCES FOR INVESTMENT THAT WERE RECEIVED FROM REME DY HOSPITALS, UAE EXCHANGE AND SALE OF SHOPS IS ALL SUP PORTED BY EVIDENCES AND THEREBY ERRED IN HOLDING THAT THE ASS ESSING OFFICER HAS NOT ENQUIRED INTO THEM AND DIRECTING THE ASSESS ING OFFICER TO ONCE AGAIN CONDUCT FRESH ENQUIRY. 4. THE LEARNED CIT ERRED IN HOLDING THAT THERE IS A MISTAKE IN ALLOWING DEDUCTION UNDER SECTION 54 AND FURTHER ERR ED IN HOLDING THAT THE INVESTMENT IS IN A COMMERCIAL PROPERTY INS TEAD OF APPRECIATING THE EVIDENCE REGARDING INVESTMENT IN R ESIDENTIAL HOUSE FROM SALE OF SHOPS AND THEREBY ERRED IN DIREC TING THE ASSESSING OFFICER TO CONSIDER SUCH DEDUCTION AFRESH .' 3. GROUNDS RAISED IN ITA NO. 768/HYD/2009 READ AS UN DER:- I. THE ORDER OF THE LEARNED CIT (A) IS ERRONEOUS BOTH ON FACTS AND IN LAW IN SO FAR AS IT IS PREJUDICIAL TO THE ASSESS EE. II. THE LEARNED CIT (A) ERRED IN CONFIRMING THE ORDER O F THE ASSESSING OFFICER ON THE GROUND THAT THE ASSESSEE'S COUNSEL ACCEPTED FOR ADDITIONS BEFORE THE ASSESSING OFFICER WITHOUT APPRECIATING THE FACT THAT THERE CAN BE NO SUCH ACC EPTANCE WHEN ONE OF THE ISSUE IS ALREADY IN APPEAL WHICH WAS LAT ER DECIDED PARTLY FAVORABLY TO THE ASSESSEE AND ON THE OTHER I SSUE EVIDENCE ITA NOS.493 &768/HYD/2009 SRI B. SIVA PRASAD, HYD. 3 WAS FILED DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS AND ALSO DURING THE PROCEEDINGS UNDER SECTION 263. III. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT(A) ERRED IN HOLDING THAT THE ACCEPTANCE BY THE COUNSEL IS FOR B OTH THE ISSUES WHEN THE READING OF THE ORDER SHEET NOTING BY THE A SSESSING OFFICER CLEARLY INDICATES THAT THE ACCEPTANCE IS ON LY FOR NOT ALLOWING DEDUCTION UNDER SECTION 54-F AND THEREBY E RRED IN CONFIRMING BOTH THE ADDITIONS. IV. THE LEARNED CIT(A) ERRED IN HOLDING THAT ONCE THE A DDITIONS ARE ACCEPTED THEY CANNOT BE AGITATED IN APPEAL WITHOUT APPRECIATING THE FACT IF SUCH ACCEPTANCE IF FOUND TO BE NOT CORR ECT THE GROUND CAN BE CONSIDERED IN SPITE OF CITING THE DECISION O F ITAT, HYDERABAD WHICH IN TURN RELIED ON THE DECISION OF SU PREME COURT.' 4. ITA NO. 768/HYD/2009 IS TIME BARRED BY 29 DAYS. THE ASSESSEE HAS FILED PETITION DATED 1-2-2010 PRAYING FOR CONDONING THE SAID DELAY. WE HAVE GONE THROUGH THE SAID PETITION OF THE ASSESSEE AND FIND THAT THERE IS SUFFICIENT AND GENUINE REASON FOR FILING THE APPEAL LATE BY 29 DAYS. IN VIEW OF THE ABOVE AND CONSIDERING THE FACTS AND THE CIRCUMSTANCES OF THE CASE, WE CONDONE THE DELAY AND ADMIT THE APPEAL. BRIEF FACTS OF THE CAS E ARE THAT THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM PROFESSION, PROP ERTY, ETC. FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, AN ASSESSMENT UNDER S. 143(3) WAS MADE BY THE ASSESSING OFFICER. THE CIT-IV, HYDERABA D EXERCISING HIS JURISDICTION UNDER THE PROVISIONS OF SECTION 263 OF ACT HAS ISSUED A SHOW CAUSE LETTER TO THE ASSESSEE ON 6-2-2007 PROPOSING TO CANCEL THE ASSESSMENT THAT IS ALREADY MADE AND TO ISSUE DIRECTIONS FOR RE DOING THE SAME AFRESH ON THE GROUND THAT THE ASSESSING OFFICER WHILE COMPLE TING THE ASSESSMENT HAS MADE A REFERENCE TO THE VALUATION CELL BUT HAS COMP LETED THE ASSESSMENT BEFORE RECEIVING THE REPORT OF THE VALUATION OFFICE R IN VIEW OF LIMITATIONS UNDER THE ACT, AND THEREBY THE ASSESSING OFFICER HAS NOT ADDED THE DIFFERENCE IN COST OF CONSTRUCTION BETWEEN THE DVO'S REPORT AND T HE COST ADMITTED BY THE ITA NOS.493 &768/HYD/2009 SRI B. SIVA PRASAD, HYD. 4 ASSESSEE, HAS NOT ENQUIRED INTO THE AVAILABILITY OF FUNDS IN RESPECT OF RECEIPTS VIZ., (I) DEPOSITS FROM REMEDY HOSPITAL RS.33 LAKHS, (II) UAE FOREIGN EXCHANGE RS.2.25 LAKHS AND (III) SALES OF SHOPS AT RS.14.55 LAKHS. DEDUCTION WAS WRONGLY ALLOWED UNDER S. 54 OF THE AC T IN RESPECT OF CAPITAL GAINS OF SALE OF LAND. THE ASSESSEE FILED DETAILED SUBMISSIONS IN WRITING WHEREIN HE HAS SUBMITTED THAT THE VALUE ARRIVED AT BY THE DVO IS NOT CORRECT AND THAT AFTER ADJUSTMENTS TO SUCH VALUE AS SUBMITT ED BY THE ASSESSEE, THERE WILL BE NO DIFFERENCE IN COST OF CONSTRUCTION FOR BEING ADDED. IN RESPECT OF THE ENQUIRY INTO THE AVAILABILITY OF FUNDS, THE ASS ESSEE SUBMITTED THAT IT HAS PRODUCED THE LEASE DEEDS ENTERED INTO FOR RECEIVING THE AMOUNTS FROM REMEDY HOSPITALS AND UAE EXCHANGE TOWARDS RENTAL DEP OSITS, PRODUCED BANK STATEMENT BEFORE THE ASSESSING OFFICER. WITH REGARD TO THE SALE OF SHOPS THE ASSESSEE SUBMITTED THAT IT HAS PRODUCED COPY OF SAL E DEEDS EXECUTED BY HIM BEFORE THE ASSESSING OFFICER AND HAS SUBMITTED SUCH COPIES TO THE CIT TO DEMONSTRATE THAT HE HAS RECEIVED SUCH AMOUNT. 5. WITH REGARD TO THE DEDUCTION UNDER SECTION 54 O F THE ACT, IT WAS SUBMITTED THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTI ON UNDER SECTION 54F AND THAT THE SECTION WAS WRONGLY MENTIONED AS 54. IT W AS SUBMITTED THAT THE SALE PROCEEDS OF THE SHOPS ARE INVESTED IN A PURPOS E OF RESIDENTIAL HOUSE AND FILED COPY OF THE SALE DEED IN RESPECT OF THE RESID ENTIAL HOUSE THAT IS PURCHASED. NOT SATISFIED WITH THE EXPLANATIONS OF THE ASSESSEE, THE COMMISSIONER ASSUMED HIS JURISDICTION UNDER S.263 O F THE ACT, DIRECTED THE ASSESSING OFFICER TO MAKE THE ASSESSMENT DENOVO, ON THE ABOVE ISSUES, IN ACCORDANCE WITH THE LAW. AGGRIEVED BY THE ORDER OF THE COMMISSIONER, THE ASSESSEE IS IN APPEAL BEFORE US. THE ASSESSEE ALSO FILED APPEAL BEFORE US, AGAINST THE ORDERS OF THE CIT (A), WHEREIN THE CIT (A) DISMISSED THE APPEAL OF THE ASSESSEE, RELATING TO THE ASSESSMENT DONE U NDER SECTION 143(3) OF THE ACT ON THE DIRECTIONS OF THE COMMISSIONER UNDER SEC TION 263 OF THE ACT. 6. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE REFERENCE TO VALUATION CELL IS MADE IN A ROUTINE MANNER WITHOUT RECORDING ANY SATISFACTION ITA NOS.493 &768/HYD/2009 SRI B. SIVA PRASAD, HYD. 5 WITH REGARD TO THE INVESTMENT OVER AND ABOVE DISCLO SED IN THE RETURN OF INCOME AND HENCE, THERE IS NO ERROR IN NOT MAKING A DDITION ON THE BASIS OF SUCH VALUATION REPORT. IT IS SUBMITTED THAT THE SOU RCES FOR INVESTMENT THAT WERE RECEIVED FROM REMEDY HOSPITALS, UAE EXCHANGE AN D SALE OF SHOPS IS ALL SUPPORTED BY EVIDENCES AND COMMISSIONER ERRED IN HO LDING THAT THE ASSESSING OFFICER HAS NOT ENQUIRED INTO THEM AND DI RECTED THE ASSESSING OFFICER TO ONCE AGAIN CONDUCT FRESH ENQUIRY. THE AS SESSEE, BY MISTAKE, MENTIONED SECTION 54 INSTEAD OF SECTION 54F WHILE C LAIMING THE DEDUCTIONS AND HENCE, THERE IS NO MISTAKE IN ALLOWING DEDUCTIO N UNDER SECTION 54 AND COMMISSIONER ERRED IN HOLDING THAT THE INVESTMENT I S IN A COMMERCIAL PROPERTY INSTEAD OF APPRECIATING THE EVIDENCE REGAR DING INVESTMENT IN RESIDENTIAL HOUSE FROM SALE OF SHOPS AND THEREBY ER RED IN DIRECTING THE ASSESSING OFFICER TO CONSIDER SUCH DEDUCTION AFRESH . WITH REGARDS TO THE ASSESSMENT ORDER PASSED UNDER S.143 [3] ON THE DIRE CTIONS OF THE COMMISSIONER, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LEARNED CIT (A) ERRED IN CONFIRMING THE ORDER OF TH E ASSESSING OFFICER ON THE GROUND THAT THE ASSESSEE'S COUNSEL ACCEPTED FOR ADD ITIONS BEFORE THE ASSESSING OFFICER WITHOUT APPRECIATING THE FACT THA T THERE CAN BE NO SUCH ACCEPTANCE WHEN ONE OF THE ISSUE IS ALREADY IN APPE AL WHICH WAS LATER DECIDED PARTLY FAVORABLY TO THE ASSESSEE AND ON THE OTHER ISSUE EVIDENCE WAS ALSO FILED DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS AND ALSO DURING THE PROCEEDINGS UNDER SECTION 263. ALTERNATI VELY, HE SUBMITTED THAT THE ACCEPTANCE BY THE COUNSEL IS FOR ONLY ONE ISSUE AND NOT FOR BOTH THE ISSUES WHEN THE READING OF THE ORDER SHEET NOTING B Y THE ASSESSING OFFICER CLEARLY INDICATES THAT THE ACCEPTANCE IS ONLY FOR N OT ALLOWING DEDUCTION UNDER SECTION 54-F AND THEREBY ERRED IN CONFIRMING BOTH T HE ADDITIONS. IT IS SUBMITTED THAT ONCE THE ADDITIONS ARE ACCEPTED, THE SAME CANNOT BE AGITATED IN APPEAL WITHOUT APPRECIATING THE FACT IF SUCH ACC EPTANCE IS FOUND TO BE NOT CORRECT THE GROUND CAN BE CONSIDERED. HE PLACED RELI ANCE ON THE DECISION OF THE APEX COURT IN THE CASE OF SHRI KRISHAN VS. THE KURUKSHETRA UNIVERSITY IN CIVIL APPEAL NO.947 OF 1975 DATED 17-11-1975. ITA NOS.493 &768/HYD/2009 SRI B. SIVA PRASAD, HYD. 6 7. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REP RESENTATIVE WHILE SUPPORTING THE ORDER OF THE CIT SUBMITTED THAT THE ASSESSING OFFICER ALLOWED THE DEDUCTION UNDER S.54 OF THE ACT, WITHOUT ANY EN QUIRY, AS THE ASSESSEE HIMSELF WRONGLY MENTIONED S.54 INSTEAD OF S.54F OF THE ACT. HENCE, ALLOWING THE DEDUCTION UNDER S.54 ITSELF SHOWS THAT THE ASSE SSING OFFICER NOT VERIFIED THE RETURN AND NO APPLICATION OF MIND ON THE PART O F THE ASSESSING OFFICER. HENCE, THE ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE ASSESSEE NOT FILED ANY DETAILS WITH REGARD TO THE DEDUCTIONS UNDER S.54 OF THE ACT. IT IS A DELIBERATE ACT OF THE ASSESSEE TO NOT TO FILE THE DETAILS TO CLAIM THE DE DUCTION WRONGLY. ONCE THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE AGREED FO R DISALLOWANCE OF DEDUCTION UNDER S.54/54F OF THE ACT, THE SAME CAN N OT BE AGITATED BEFORE THE HIGHER AUTHORITIES. IN THE CASE RELIED ON BY TH E LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE HIMSELF MADE ADMISSION DUE T O THE IGNORANCE OF LAW OR UNDER DURESS AND ADMISSION IS NOT BY THE QUALIFI ED LEGAL EXPERT BUT IN THE CASE UNDER CONSIDERATION, THE AUTHORIZED REPRESENTA TIVE OF THE ASSESSEE AGREED FOR THE ADDITION. HENCE, THE CASE CITED BY T HE LEARNED COUNSEL FOR THE ASSESSEE HAS NO APPLICATION TO THE CASE UNDER CONSI DERATION. IT IS SUBMITTED THAT BOTH THE ORDERS OF THE COMMISSIONER AND CIT[A] IS TO BE SUSTAINED. 8. WE HAVE CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. FIRST, WE WILL TA KE UP THE ASSESEE'S APPEAL IN ITA NO.493/HYD ON CHALLENGING THE JURISDICTION OF TH E CIT UNDER SECTION 263 OF THE ACT. WE FIND THAT THE CIT ASSUMED HIS JURIS DICTION ON ACCOUNT OF THREE ISSUES. THE FIRST ISSUE BEING, WHILE COMPLETING THE ASSESSMENT UNDER S. 143(3) OF THE ACT, THE ASSESSING OFFICER DID NOT TA KE INTO ACCOUNT THE DIFFERENCE IN THE COST OF CONSTRUCTION OF THE PROPE RTY OWNED BY THE ASSESSEE AS AGAINST VALUE ADOPTED BY THE DVO. THE ASSESSIN G OFFICER REFERRED VALUATION OF THE PROPERTY TO THE DVO AND THE DVO DE TERMINED THE COST OF CONSTRUCTION AT RS.102.8 LAKHS. AS OBSERVED BY THE COMMISSIONER, THE ASSESSING OFFICER DID NOT CONSIDERED THE VALUATION REPORT WHILE COMPLETING THE ASSESSMENT UNDER S. 143(3) OF THE ACT. HENCE, HE AS SUMED HIS JURISDICTION ITA NOS.493 &768/HYD/2009 SRI B. SIVA PRASAD, HYD. 7 UNDER SECTION 263 OF THE ACT. WE FIND FROM THE CIT (A)'S ORDER FOR THE ASSESSMENT YEAR 2000-01, 2001-02, 2002-03 IN THE CA SE OF SHRI V. SURYA PRAKASH RAO, CO-OWNER OF THE PROPERTY IN DISPUTE, W HEREIN THE FIRST APPELLATE AUTHORITY ALLOWED THE DEDUCTION IN DETERMINING THE COST OF THE PROPERTY AT 15% TOWARDS RATE DIFFERENCE AND 5% TOWARDS PERSONAL SUPERVISION AND DIRECTED THE ASSESSING OFFICER TO RE-COMPUTE THE UN EXPLAINED INVESTMENT FOR THE AFORESAID THREE YEARS AT RS.1,75,163. HOWEVER, IN OUR CONSIDERED OPINION, VALUATION REPORT SUBMITTED BY THE DVO IS O NLY AN ESTIMATE AND PIECE OF EVIDENCE WHICH IS NOT BINDING ON THE ASSESSING O FFICER TO ADOPT THE SAME. THE VALUATION REPORT OF THE DVO CANNOT BE A BASIS F OR ASSUMING THE JURISDICTION BY COMMISSIONER UNDER SECTION 263 OF T HE ACT. AGAIN, IN RESPECT OF ISSUE RELATING TO SOURCES FOR INVESTMENT, THE CO MMISSIONER ASSUMED HIS JURISDICTION WITH REGARD TO THE AVAILABILITY OF THE FUNDS FOR INVESTMENT HOLDING THAT THE ASSESSING OFFICER DID NOT MAKE ANY ENQUIRY . IN THIS REGARD, WE FIND THAT THE ASSESSING OFFICER WHILE PASSING THE ORDER UNDER SECTION 143(3) OF THE ACT PURSUANT TO THE ORDER PASSED UNDER SECTION 263 OF THE ACT DID NOT MAKE ANY ADDITION ON ACCOUNT OF SOURCES FOR INVESTMENT. HENCE, IN OUR CONSIDERED VIEW, THE ISSUE BECOMES AN ACADEMIC ONE. IN SO FAR THE THIRD ISSUE RELATES TO EXEMPTION UNDER SECTION 54 OF THE ACT, WE FIND THAT THE ASSESSEE HAD CLAIMED EXEMPTION UNDER SECTION 54 IN THE STATEMENT FILED A LONG WITH THE RETURN WITHOUT GIVING ANY DETAILS. THE ASSESSEE HAD SIMPL Y CALCULATED THE LONG TERM CAPITAL GAINS AND CLAIMED EXEMPTION UNDER SECTION 5 4 OF THE ACT. THE ASSESSING OFFICER HAD NOT DISCUSSED ANYTHING ABOUT THE DEDUCTION AS TO WHETHER THE ASSESSEE HAS FULFILLED THE CONDITIONS A S PRESCRIBED IN SECTION 54 OF THE ACT FOR BEING ELIGIBLE TO QUALIFY FOR EXEMPT ION UNDER SECTION 54 OF THE ACT. IN THE COURSE OF PROCEEDINGS UNDER SECTION 26 3, THE ASSESSEE HIMSELF HAS ADMITTED THAT THE ASSESSEE CLAIMED DEDUCTION BY MISTAKE UNDER S.54 INSTEAD SECTION 54F OF THE ACT. AS PER THE OBSERV ATIONS OF THE CIT (A), THE ASSESSING OFFICER DID NOT DISCUSS ANYTHING ON THIS ISSUE AND SIMPLY ALLOWED THE DEDUCTION UNDER SECTION 54 OF THE ACT. IN OUR CONSIDERED OPINION, THE CIT WAS RIGHT IN ASSUMING HIS JURISDICTION UNDER SE CTION 263 OF THE ACT ON THE REASONING THAT THE ASSESSEE CLAIMED DEDUCTION WRONG LY IN ITS COMPUTATION ITA NOS.493 &768/HYD/2009 SRI B. SIVA PRASAD, HYD. 8 AND THE ASSESSING OFFICER ALLOWED THE DEDUCTION WIT HOUT ANY VERIFICATION WHICH IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. IN VIEW OF OUR ABOVE DISCUSSION, THE CIT WAS RIGHT IN ASSUMING HIS JURISDICTION UNDER SECTION 263 OF THE ACT ONLY ON THE ISSUE OF DEDUCTION UNDER S.54 OF THE ACT WHICH WAS ALLOWED BY THE ASSESSING OFFICER WRONGLY WITHOU T ANY VERIFICATION. TO THAT EXTENT, THE ORDER OF THE CIT UNDER SECTION 263 IS SUSTAINED. NEXT, WE WILL TAKE UP THE APPEAL OF THE ASSESSEE IN ITA NO768/HYD/ 09. WE FIND FROM THE CIT (A)'S ORDER, IN RELATION TO THE ASSESSMENT DONE UNDER SECTION 143(3) OF THE ACT PURSUANT TO THE ORDER OF THE COMMISSIONER U NDER SECTION 263 OF THE ACT, WE FIND THAT THE ASSESSEE RAISED TWO ISSUES. 9. THE FIRST ISSUE IS AGAINST THE ADDITION OF RS. 2,48,288 MADE TOWARDS UNEXPLAINED INVESTMENT AND THE SECOND ISSUE RELATE S TO THE NON ALLOWANCE OF DEDUCTION UNDER SECTION 54F OF THE ACT. SINCE WE HELD THAT THE CIT WAS RIGHT IN ASSUMING HIS JURISDICTION UNDER SECTION 26 3 ONLY ON THE ISSUE RELATING TO NON ALLOWANCE OF DEDUCTION UNDER SECTION 54F OF THE ACT, THE FIRST ISSUE BECOMES IN FRUCTUOUS. THE OTHER ISSUE REMAINS TO B E ADJUDICATED ONLY RELATES TO NON ALLOWANCE OF DEDUCTION UNDER SECTION 54F OF THE ACT. WE FIND FROM THE ORDER OF THE CIT(A) AT PARA 5.2 , REPRODUC ED THE ORDER SHEET NOTINGS, IT IS CLEAR THAT THE ASSESSEE HAS AGREED F OR THE DISALLOWANCE OF EXEMPTION UNDER SECTION 54/54F OF THE ACT BEFORE TH E ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS. UNDER THESE FA CTS AND THE CIRCUMSTANCES, WHEN THE AUTHORIZED REPRESENTATIVE O F THE ASSESSEE HAS AGREED FOR THE ABOVE DISALLOWANCES BEFORE THE ASSES SING OFFICER, THE ASSESSEE CANNOT AGITATE THE SAME IN APPEAL BEFORE US. WE DO NOT SEE ANY MERIT IN THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE AGREED FOR DISALLOWA NCE ONLY ON MISTAKEN IMPRESSION AND ADMISSION MADE IN IGNORANCE OF LEGAL RIGHTS OR UNDER DURESS CANNOT BE BINDING ON THE ASSESSEE. EVEN THE CASE-LA W RELIED ON BY THE LEARNED COUNSEL FOR THE ASSESSEE IN THE CASE OF SHR I KRISHAN (SUPRA) IS NOT APPLICABLE TO THE FACTS OF THE CASE. AS IN THAT CA SE, THE ASSESSEE HIMSELF MADE ADMISSION IN IGNORANCE OF LEGAL RIGHTS OR UNDE R DURESS WHEREAS IN THE ITA NOS.493 &768/HYD/2009 SRI B. SIVA PRASAD, HYD. 9 CASE UNDER CONSIDERATION THE AUTHORIZED REPRESENTA TIVE BEING A LEARNED PERSON HAD AGREED FOR DISALLOWANCE UNDER SECTION 54 /54F OF THE ACT. THEREFORE, IN OUR CONSIDERED OPINION THE CASE LAW R ELIED ON BY THE LEARNED COUNSEL FOR THE ASSESSEE CANNOT BE ANY ASSISTANCE T O THE CASE UNDER CONSIDERATION. IN VIEW OF OUR FINDING, WE DO NOT S EE ANY INFIRMITY IN THE ORDER OF THE CIT IN CONFIRMING THE DISALLOWANCE UND ER SECTION 54/54F OF THE ACT. 10. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESSEE AR E PARTLY ALLOWED AS INDICATED ABOVE. ORDER WAS PRONOUNCED IN THE COURT ON 04-6-2010. SD/- G.C.GUPTA SD/- AKBER BASHA VICE PRESIDENT ACCOUNTANT MEMBER. DT/- 4TH JUNE, 2010 COPY FORWARDED TO: 1. C/O K. VASANTKUMAR, 102, FIRST FLOOR, TARAMANDAL COMPLEX, SAIFABAD, HYDERABAD. 2 ACIT, CIR-4(1), HYDERABAD. 3. 4. THE CIT, AP, HYDERABAD., CIT(A)-IV, HYDERABAD. DR, ITAT, HYDERABAD. JMR*