K Raja Rani, Hyderabad V. ACIT., Circle-8(1), Hyderabad, Hyderabad

ITA 84/HYD/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5967 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 24-05-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 20-01-2015
• Court: TRIBUNAL
• Department Lawyers: K J RAO
• Assessee Lawyers: S RAMA RAO

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER I.T.A. NO. 84/HYD/2015 ASSESSMENT YEAR: 2010-11 K. RAJA RANI, HYDERABAD [PAN: AQBPR9391L] VS ASST. COMMISSIONER OF INCOME TAX, CIRCLE-8(1), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI S. RAMA RAO, AR FOR REVENUE : SHRI K.J. RAO, DR DATE OF HEARING : 28-11-2016 DATE OF PRONOUNCEMENT : 09-12-2016 O R D E R PER B. RAMAKOTAIAH, A.M. : THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF TH E COMMISSIONER OF INCOME TAX (APPEALS)-III, HYDERABAD DATED 22-10-2014, DISMISSING ASSESSEES APPEAL INVOKING T HE DECISIONS OF VARIOUS COURTS FOR NON-PROSECUTION. 2. BRIEFLY STATED, ASSESSEE AN INDIVIDUAL FILED THE RE TURN OF INCOME FOR AY. 2010-11 ON 14-09-2011 DECLARING TOTAL INCOME OF RS. 1,63,778/-. THE ASSESSMENT WAS COMPLETED U/S. 1 43(3) R.W.S. 147 OF THE INCOME TAX ACT [ACT] ON 31-01-2014 DETERM INING THE TOTAL INCOME AT RS. 83,13,778/-. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A). AGAINST THE NOTICES RE CEIVED BY ASSESSEE (THREE IN ALL), ASSESSEE FILED LETTERS SEEKI NG ADJOURNMENTS. I.T.A. NO. 84/HYD/2015 K. RAJA RANI :- 2 -: HOWEVER, LD. CIT(A) WAS OF THE OPINION THAT ASSESSEE I S NOT INTERESTED IN PURSUING THE APPEAL, ACCORDINGLY, DIS MISSED THE APPEAL. 3. AGGRIEVED, ASSESSEE HAS RAISED THE FOLLOWING GROU NDS: 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN DECIDING THE APPEAL EX PARTE AND IN NOT CONSIDERING THE GROUNDS OF APPEAL. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT ADJUDICATING THE APPEAL GROUND-WISE. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE DETERMINATION OF CAPITAL GAIN AT RS. 56,50,000/- ADOPTING THE SALE CONSIDERATION AT RS. 1,63,00,000/ - AS AGAINST THE ACTUAL SALE CONSIDERATION OF RS. 80,00,000/-. 5. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION MADE OF RS. 25 LAKHS ON THE PLEA THAT THE SOURCE FOR ACQUISITION OF SHARE OF PLOT WAS NOT PRO PERLY EXPLAINED. GROUND NOS. 1 & 6 ARE GENERAL IN NATURE. 4. IT WAS THE CONTENTION OF LD. COUNSEL THAT LD. CIT(A) S HOULD NOT HAVE DISMISSED THE APPEAL WHEN ASSESSEE CLEARLY M ENTIONED THAT SHE WAS IN THE PROCESS OF APPOINTING AN AR AND SOU GHT TIME. SINCE SUBSTANTIAL ISSUE OF MAJOR ADDITIONS WERE INVOL VED, IT WAS REQUESTED THAT ASSESSEE MAY BE GIVEN AN OPPORTUNITY T O MAKE HER CASE BEFORE THE LD. CIT(A). 5. LD. DR HOWEVER, STATED THAT ASSESSEE HAS NOT APPEARED BEFORE THE LD. CIT(A), THEREFORE, NO FURTHER OPPORTUNIT Y NEED TO BE GIVEN. I.T.A. NO. 84/HYD/2015 K. RAJA RANI :- 3 -: 6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSE D THE ORDER OF THE LD. CIT(A). ASSESSEE PREFERRED THE APPE AL BY FILING FORM-35 ON 11-03-2014 AND THE FIRST NOTICE WAS ISSUED ON 11-08- 2014. THE SECOND NOTICE WAS ISSUED ON 05-09-2014 A ND THE CASE WAS ADJOURNED TO 08-10-2014. THE FINAL OPPORTUNITY W AS GIVEN ON 21-10-2014. SINCE ASSESSEE WAS ONLY SEEKING ADJOUR NMENTS, LD. CIT(A) WAS OF THE OPINION THAT ASSESSEE IS NOT INTEREST ED IN PURSUING THE APPEAL. WE ARE NOT CONVINCED WITH THE R EASONING GIVEN BY THE LD. CIT(A). FIRST OF ALL, CIT(A) DISM ISSED THE APPEAL FOR NON-PROSECUTION. THERE ARE NO SUCH POWERS WITH CIT(A) TO DISMISS THE APPEAL FOR NON PROSECUTION. AS PER SECTIO N 250(6) OF THE INCOME TAX ACT, THE ORDER OF THE CIT(A) DISPOSING O FF THE APPEAL SHALL STATE THE POINTS FOR DETERMINATION, THE DECISION T HEREON AND THE REASON FOR DECISION. AS PER THE PROVISIONS OF SE CTION 251(1)(A), THE CIT(A) SHALL HAVE THE POWERS IN APPEAL AGAINST THE ORDERS OF AN ASSESSMENT ,IN WHICH HE MAY CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT. THUS, THE CIT(A) HAS LIMITED POWER IN DISPOSING- OFF THE APPEAL, UNLIKE THE ITAT OR THE HIGHER JUDICIAL FORUMS. SINCE THE POWERS DISMISSING THE APPEAL MEMO IS NOT THERE TO THE CIT(A), WE ARE NOT IN A POSITION TO APPRECIATE THE ORDER. AS S EEN FROM THE ORDER ALSO, HE HAS NOT DISCUSSED ANYTHING ABOUT THE ME RITS OF THE ISSUES AND THE CONTENTIONS RAISED BY ASSESSEE IN THE AP PEAL. THE ORDER IS NOT AS PER THE PROVISIONS OF THE ACT. THEREF ORE, WE HAVE NO HESITATION IN SETTING ASIDE THE ORDER AND RESTORING THE A PPEAL TO THE FILE OF CIT(A) TO CONSIDER IT ON MERITS AFTER GIVING DUE OPPORTUNITY TO ASSESSEE. IN CASE ASSESSEE IS NOT CO-OPERATIVE, THEN, HE IS DIRECTED TO PASS THE ORDERS ON MERITS OF THE ISSUE, AFTER CONS IDERING EACH OF THE ISSUE AND THE DECISION THEREON. WITH THESE OBSER VATIONS, ASSESSEES GROUND NOS. 2 & 3 ARE ALLOWED. I.T.A. NO. 84/HYD/2015 K. RAJA RANI :- 4 -: 7. GROUND NOS. 4 & 5 ARE ON THE MERITS OF THE ADDITIONS MADE WHICH REQUIRE ADJUDICATION BY THE CIT(A). THEREFORE, THIS FORUM DOES NOT INTEND TO ADJUDICATE THE ISSUE AT THE MOMENT. THE APPEAL BEFORE THE CIT(A) IS RESTORED. ASSESSEE IS DIRECTED TO CO-OPERATE AND MAKE SUBMISSIONS BEFORE CIT(A). 8. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH DECEMBER, 2016 SD/- SD/- (P. MADHAVI DEVI) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEM BER HYDERABAD, DATED 9 TH DECEMBER, 2016 TNMM COPY TO : 1. K. RAJA RANI, H. NO. 1-96/1, ARUNODAYA COLONY, MADHAPUR, HYDERABAD. 2. THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE-8(1 ), HYDERABAD. 3. CIT (APPEALS)-III, HYDERABAD. 4. THE CIT-II, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.