Sri D.Satyanarayana, Visakhapatnam V. The ACIT, Circle-4(1), Visakhapatnam, Visakhapatnam

ITSSA 1/VIZ/2012

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2285 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 4 year(s) 5 month(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-07-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 15-12-2015
• Assessment Year: misc
• Appeal Filed On: 27-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M BHUPAL REDDY
• Assessee Lawyers: C V S MURTHY
• Keywords: Unexplained investment; Search and seizure; Corroborative evidences; Valuation report; Block assessment; Reassessment proceedings
• Section: 132

Judgement Text

IT(SS)A NO.1/VIZAG/2012 SRI D. DATYANARAYANA, VISAKHAPATNAM 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . , $ BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ./I.T.(SS)A NO.1/VIZAG/2012 ( / ASSESSMENT YEAR/BLOCK PERIOD: 01.04.1988 TO 26.1 1.2009) D. SATYANARAYANA VISAKHAPATNAM VS. ACIT, CIRCLE - 4(1), VISAKHAPATNAM [PAN: AEFPD6000A ] ( % / APPELLANT) ( &'% / RESPONDENT) / APPELLANT BY : SHRI C.V.S. MURTHY, AR / RESPONDENT BY : SHRI M. BHUPAL REDDY, DR / DATE OF HEARING : 24.05.2016 / DATE OF PRONOUNCEMENT : 28.07.2016 / O R D E R PER V. DURGA RAO, JUDICIAL MEMBER: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF CIT(A), VISAKHAPATNAM DATED 30.11.2011 FOR THE BLOC K PERIOD 10.4.1988 TO 26.11.2009. WHEN THIS APPEAL IS TAKEN UP FOR HEA RING, WE SPECIFICALLY ASKED THE LD. D.R. IF ANY CROSS APPEAL FILED BY THE REVENUE. THE LD. IT(SS)A NO.1/VIZAG/2012 SRI D. DATYANARAYANA, VISAKHAPATNAM 2 D.R. HAS SUBMITTED THAT NO CROSS APPEAL IS FILED BY THE REVENUE. WE THEREFORE, PROCEEDED TO HEAR THIS APPEAL OF THE ASS ESSEE. 2. OUT OF GROUNDS RAISED BY THE ASSESSEE GROUND NOS .1&5 ARE GENERAL IN NATURE, THEREFORE NO ADJUDICATION IS REQUIRED. GROUND NO.3 NOT PRESSED, THEREFORE DISMISSED. GROUND NOS.2&4 ARE O NLY REMAINING FOR ADJUDICATION. 3. FACTS ARE IN BRIEF THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF RUNNING A LODGE IN THE NAME OF M/S. SAI SUDHA LODG E. BEFORE STARTING THIS BUSINESS, HE WAS A TAXI DRIVER AND PROPRIETOR OF NEW CITY TRAVELS, VISAKHAPATNAM. THERE WAS A SEARCH AND SEIZURE OPER ATION U/S 132 OF THE ACT ON 26.11.1998 IN THE BUSINESS AND RESIDENTI AL PREMISES OF THE ASSESSEE. THE BLOCK ASSESSMENT WAS COMPLETED ON 30 .11.2000 BY DETERMINING THE UNDISCLOSED INCOME AT ` 82,91,629/-. ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A)-1, HYDERA BAD AND GOT SUBSTANTIAL RELIEF. AGAINST THE ORDER OF THE CIT(A ), REVENUE AS WELL AS ASSESSEE PREFERRED AN APPEAL BEFORE THE TRIBUNAL. THE ASSESSEES APPEAL WAS HEARD FIRST AND DISPOSED OF BY ORDER DAT ED 24.3.2003 IN IT(SS)A NO.95/VIZAG/2002. THE TRIBUNAL HAS GRANTED A FURTHER RELIEF AND SOME OF THE ISSUES RELATING TO THE COMPUTATION OF INCOME FROM TAXI BUSINESS WAS SET ASIDE TO THE FILE OF THE A.O. REV ENUES APPEAL IN IT(SS)A NO.1/VIZAG/2012 SRI D. DATYANARAYANA, VISAKHAPATNAM 3 IT(SS)A NO.99/VIZAG/2002 SEPARATELY WAS DISPOSED O FF BY THE ITAT VIDE ORDER DATED 8.8.2008 WITH REGARD TO THE ADDITION OF ` 8,24,848/- IN RESPECT OF INVESTMENT IN TENALI HOUSE PROPERTY BY O BSERVING AS UNDER: WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. AS COULD BE NOTICED FROM THE ASSESSMEN T ORDER, THERE IS NO EVIDENCE ON RECORD TO SUGGEST THAT THE PROPERTY WAS OWNED BY THE ASSESSEES WIFE AS AGAINST THE SPECIFIC FINDING OF THE ASSESSING OFFICER THAT THE SALE DEED WAS NOT AVAILABLE WITH REGARD TO PURC HASE OF SITE. THE LEARNED CIT(A) MAKES A CASUAL OBSERVATION THAT THE PROPERTY WAS REGISTERED IN THE NAME OF ASSESSEES WIFE FROM WHIC H IT CAN BE INFERRED THAT THE CONCLUSIONS REACHED BY THE FIRST APPELLATE AUTHORITY WERE PARTLY BASED ON SURMISES. THERE IS NO EVIDENCE ON RECORD TO SUGGEST THAT THE ASSESSEES WIFE HAD SOME INDEPENDENT SOURCE OF INCO ME. IT IS TRITE LAW THAT IN THE CASE OF HOUSEWIFE IT IS THE CUSTOMARY P RACTICE OF HOUSE HOLDER TO PURCHASE PROPERTIES IN THE NAME OF WIFE. THE MA XIM VIR ET UXOR CENSENTUR IN LEGE UNA PERSONA (HUSBAND AND WIFE ARE CONSIDERED ONE PERSON IN LAW) DESERVES TO BE TAKEN NOTE OF WHILE C ONSIDERING THE ISSUE OF INVESTMENT CLAIMED TO HAVE BEEN MADE IN THE NAME OF WIFE, MORE PARTICULARLY WHEN THE LADY IS HOUSEWIFE AND NO REGU LAR SOURCE OF INCOME IS PROVED. THE LEARNED CIT(A) HAVING IGNORED THESE AS PECTS, WE HEREBY SET ASIDE HIS ORDER AND RESTORE THE ISSUE TO THE FILE O F THE ASSESSING OFFICER FOR FRESH CONSIDERATION. 4. SUBSEQUENTLY, A.O. HAS COMPLETED THE ASSESSMENT AFRESH AFTER GIVING OPPORTUNITY TO THE ASSESSEE. IT WAS SUBMITT ED BEFORE THE A.O. BY THE ASSESSEE THAT FOR THE PURPOSE OF ACQUIRING THE LAND AND CONSTRUCTION OF THE HOUSE, HE HAS SUBMITTED THE SOURCE OF ` 40,000/- WAS HIS WIFES STRIDHANAM AND ACCUMULATED AGRICULTURAL INCOME OF ` 35,000/- AND OTHER LOANS BORROWED FOR THE AMOUNT OF ` 2,55,000/- TOTALING TO ` 3,30,000/- AND SUBMITTED THAT THIS IS THE SOURCE OF INCOME IN RESPECT OF THE CONSTRUCTION OF THE TENALI HOUSE PROPERTY. THE A.O . AFTER CONSIDERING THE EXPLANATION OF THE ASSESSEE, HE HAS OBSERVED TH AT THE ASSESSEE HAS IT(SS)A NO.1/VIZAG/2012 SRI D. DATYANARAYANA, VISAKHAPATNAM 4 NOT FURNISHED THE ADDRESSES OF THE LOAN CREDITORS A ND DOCUMENTS RELATING TO CREDITWORTHINESS OF LOAN CREDITORS. SO FAR AS A GRICULTURAL INCOME IS CONCERNED, THE ASSESSEES WIFE IS NOT HAVING ANY AG RICULTURAL LAND AND THEREFORE HE HAS DISBELIEVED THE EXPLANATION GIVEN BY THE ASSESSEE. SO FAR AS INTRODUCTION OF STRIDHANAM IS CONCERNED, NO SUPPORTING EVIDENCE IS FILED, THEREFORE, THE SAME WAS DISBELIEVED. ACC ORDINGLY, ASSESSMENT WAS COMPLETED BY VALUING THE TENALI HOUSE PROPERTY AT ` 8,24,848/-. 5. ASSESSEE CARRIED MATTER IN APPEAL BEFORE THE LD. CIT(A). IT WAS SUBMITTED BEFORE THE LD. CIT(A) THAT SMT. USHA RANI , WIFE OF THE ASSESSEE HAD PURCHASED THE SITE FOR REGISTERED VALU E OF ` 75,750/- AND SPENT AN AMOUNT OF ` 10,000/- TOWARDS STAMP DUTY AND REGISTRATION CHARGES BY UTILIZING HER STRIDHANAM. SO FAR AS CON STRUCTION COST IS CONCERNED, IT WAS SUBMITTED BEFORE THE LD. CIT(A) T HAT THE COST OF CONSTRUCTION WAS ONLY OF ` 2,50,000/-. HOWEVER, THE DVO BY ADOPTING CPWD RATES ESTIMATED COST OF CONSTRUCTION AT ` 3,79,355/- AND ALTERNATIVELY IT WAS SUBMITTED THAT THE LAND IS BEL ONGING TO ASSESSEES WIFE AND THEREFORE, IT HAS TO BE ASSESSED IN THE HA NDS OF ASSESSEES WIFE AND NOT IN THE HANDS OF THE ASSESSEE. THE LD. CIT( A) AFTER CONSIDERING THE COST OF SITE AT ` 85,630/- INSTEAD OF ` 2,74,848/- AS ADOPTED BY THE A.O. IT(SS)A NO.1/VIZAG/2012 SRI D. DATYANARAYANA, VISAKHAPATNAM 5 6. REGARDING VALUATION OF THE BUILDING IS CONCERNED , THE CIT(A) HAS OBSERVED THAT THE REGISTERED VALUER ESTIMATED THE C OST OF CONSTRUCTION AT ` 500/- PER S.FT. AND THE LD. CIT(A) DIRECTED THE A. O. TO ADOPT THE COST OF BUILDING AT ` 4,47,800/- INSTEAD OF ` 5,85,387/- AND APPEAL FILED BY THE ASSESSEE WAS ALLOWED PARTLY. THE RELEVANT PORT ION OF THE ORDER OF THE CIT(A) IS EXTRACTED AS UNDER: 7.2 I HAVE CONSIDERED THE ARGUMENTS OF THE ASSESSEE AND ALSO GONE THROUGH THE DIRECTIONS OF THE HON'BLE TRIBUNAL. AT THE COST OF REPETITION, I WOULD LIKE TO STATE THAT THE HON'BLE ITAT HELD THAT THE LEGAL MAXIM THAT HUSBAND AND WIFE ARE CONSIDERED ONE PERSON IN LAW D ESERVES TO BE TAKEN NOTE OF WHILE CONSIDERING THE ISSUE OF INVESTMENT C LAIMED TO HAVE BEEN MADE IN THE NAME OF WIFE, MORE PARTICULARLY WHEN TH E LADY IS HOUSEWIFE AND NO REGULAR SOURCE OF INCOME IS PROVED. THIS DEC ISION IS RENDERED BY THE HONBLE TRIBUNAL AFTER CONSIDERING THE ARGUMENT S OF THE ASSESSEE THAT THERE IS NO EVIDENCE TO SUGGEST THAT THE PROPERTY W AS OWNED BY HUSBAND. THE ARGUMENT OF THE ASSESSEE THAT ADDITION IF ANY C AN ONLY BE MADE IN THE HANDS OF SMT. USHARANI WAS CONSIDERED BY THE HON'BL E TRIBUNAL BEFORE GIVING THIS DECISION REGARDING THE SOURCE OF INCOME OF SMT. USHARANI. THUS I AM OF THE FIRM OPINION THAT NEITHER CAN THE AO NOR CAN THE CIT(A) SIT ON JUDGMENT OF THE ISSUE ON WHICH THE HON'BLE TRIBUNAL HAS ALREADY DECIDED. THE TRIBUNAL IN THIS CASE DECIDED THAT HUSBAND AND WIFE ARE CONSIDERED AS ONE PERSON ESPECIALLY IN THE LIGHT OF THE FACT THAT NO REGULAR SOURCE OF INCOME IS PROVED IN THE CASE OF WIFE. THUS I WILL N OT BE ABLE TO CONSIDER THE ARGUMENTS OF THE ASSESSEE REGARDING THE OWNERSH IP OF PROPERTY AT THIS STAGE. THE ONLY ISSUE THAT WILL BE LEFT FOR CONSIDE RATION IS THE VALUE OF THE PROPERTY AS PER THE VALUATION CERTIFICATE FOUND DUR ING SEARCH PROCEEDINGS. THE MARKET VALUE OF THE SITE AND BUILDING IS ESTIMA TED AT RS.2,74,848/- AND RS.3,79,355/- RESPECTIVELY. THE PROPERTY WAS R EFERRED TO THE DEPARTMENTAL VALUATION CELL AND THE VALUATION REPOR T WAS OBTAINED. AS PER THIS VALUATION REPORT THE COST OF BUILDING WAS WORK ED OUT TO RS.5,50,000/-. DURING THE REASSESSMENT PROCEEDINGS ASSESSEE STATED THAT HIS WIFE UTILIZED HER STRIDHANAM OF RS.40,000/ AND ACCUMULATED AGRICU LTURAL INCOME OF RS.35,000/- AND SOME OTHER LOANS BORROWED OF RS.2,5 5,000/- TOTALING TO RS.3,30,000/- IN CONSTRUCTION OF THE HOUSE. AO, DI SAGREEING WITH THIS EXPLANATION, HELD THAT THE VALUE OF SITE IS RS.2,78 ,848/- AS PER THE VALUATION REPORT AND VALUE OF BUILDING IS RS.5,50,0 00/- AS PER THE DVO'S REPORT THUS ADDED AN AMOUNT OF RS.8,24,848/-. AS ALREADY DISCUSSED THE VALUATION REPORT SEIZED DURING THE SEARCH PROCEEDIN GS GAVE THE MARKET VALUE OF THE SITE. THIS CANNOT BE REGARDED AS INVES TMENT MADE IN THE SITE. IT(SS)A NO.1/VIZAG/2012 SRI D. DATYANARAYANA, VISAKHAPATNAM 6 ASSESSEE DURING APPELLATE PROCEEDINGS FURNISHED COP Y OF THE PURCHASE DEED WHEREIN THE PURCHASE VALUE OF THE PROPERTY IS STATED AS RS.75,750/-. FURTHER IT IS STATED THAT AN AMOUNT OF RS.9,880/- I S SPENT TOWARDS STAMP DUTY AND REGISTRATION. THUS THE TOTAL INVESTMENT IN THE LAND IS RS.85,630/-. THIS BEING THE VALUE AS PER THE REGISTERED DOCUMENT HAS TO BE ADOPTED AS THE INVESTMENT IN SITE INSTEAD OF THE VALUE ESTIMAT ED BY THE REGISTERED VALUER. HENCE I DIRECT THE AO TO TAKE RS.85,630/-INS TEAD OF RS.2,74,848/- AS VALUE OF THE SITE. REGARDING THE VALUATION OF BU ILDING I HAVE GONE THROUGH THE REGISTERED VALUER'S REPORT FOUND DURING THE SEARCH WHO ESTIMATED THE COST OF CONSTRUCTION @ RS.500/- PER S FT. I HAVE ALSO GONE THROUGH THE DVO'S REPORT AND AS PER DVO'S REPORT TH E COST OF CONSTRUCTION RS.5,50,000/-. IT IS UNDISPUTED FACT THAT THE ASSESS EE DID NOT MAINTAIN ANY BOOKS OF ACCOUNT REGARDING THE CONSTRUCTION OF PROP ERTY OR DID NOT PRODUCE ANY DETAILED CONSTRUCTION ACCOUNT. IN THE LIGHT OF THE ABOVE, REFERENCE TO THE VALUATION OFFICER IS JUSTIFIED. ON GOING THROUGH THE VALUATION REPORT I FIND THAT DVO VALUED THE PROPERTY AT RS.5,85,387/- FROM WHICH 6% DEDUCTION TOWARDS SELF-SUPERVISION IS GIVE N. DVO FOLLOWED CPWD PLINTH AREA RATES FOR THIS PURPOSE. AS HELD BY HON'BLE HYDERABAD ITAT IN THE CASE OF G. PULLA REDDY VS. ITO IN ITA N O.65 TO 71/H/03 VIDE ORDER DTD.29.10.2004 15% DEDUCTION HAS TO BE GIVEN FOR THE DIFFERENCE BETWEEN CPWD PLINTH AREA RATES AND LOCAL RATES. HEN CE I DIRECT THE AO TO ALLOW 15% DEDUCTION FROM THE GROSS CONSTRUCTION COS T ARRIVED AT BY DVO. AO IS FURTHER DIRECTED TO ALLOW 10% DEDUCTION FOR S ELF SUPERVISION TOWARDS OWN PURCHASE OF MATERIAL AND EXECUTION OF WORK INST EAD OF 6% DEDUCTION GIVEN BY DVO. THUS AO IS DIRECTED TO ARRIVE AT THE VALUE OF THE PROPERTY AS FOLLOWS GROSS VALUE AS ARRIVED BY DVO : RS.5,85,387/- LESS: 15% DEDUCTION FOR DIFFERENCE BETWEEN CPWD AND LOCAL RATES : RS. 87,808/ - RS.4,97,579/ LESS : 10% DEDUCTION FOR SELF-SUPERVISION, PURCHASE OF MATERIAL : RS. 49,756/- RS.4,47,823/- AO IS THUS DIRECTED TO ADOPT TOTAL INVESTMENT IN SI TE AND BUILDING AT RS.5,33,430/-(RS.85,630/- SITE + RS.4,47,800/- BUIL DING) INSTEAD OF RS.8,24,848/- ADOPTED BY HIM IN THE ASSESSMENT ORDE R. THUS THIS GROUND IS PARTLY ALLOWED. IT(SS)A NO.1/VIZAG/2012 SRI D. DATYANARAYANA, VISAKHAPATNAM 7 7. ON BEING AGGRIEVED, ASSESSEE CARRIED MATTER IN A PPEAL BEFORE THE TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE HAS SUB MITTED THAT THE LAND IS PURCHASED BY ASSESSEES WIFE, ON WHICH HOUSE WAS CONSTRUCTED AND THEREFORE ASSESSMENT HAS TO BE MADE IN THE HANDS OF THE ASSESSEES WIFE AND NOT IN THE HANDS OF THE ASSESSEE AND SUBMI TTED THAT THE ORDER PASSED BY THE LD. CIT(A) HAS TO BE REVERSED. 8. ON THE OTHER HAND, THE LD. D.R. HAS SUBMITTED TH AT THE ASSESSEES WIFE IS NOT HAVING ANY SOURCE OF INCOME AND SHE HAS NOT FILED ANY RETURN OF INCOME BECAUSE SHE IS ONLY A HOUSE WIFE AND SHE HAS NOT EXPLAINED THE SOURCE OF INCOME, THEREFORE, THE LD. CIT(A) HAS RIGHTLY ASSESSED INCOME IN THE HANDS OF THE ASSESSEE. 9. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATER IALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. THE ONLY ISSUE BEFORE US FOR CONSIDERATION IS THE V ALUATION OF TENALI HOUSE PROPERTY. ACCORDING TO THE A.O., THE VALUE O F THE SITE PURCHASED BY THE ASSESSEE IS ` 2,74,848/- AND THE VALUE OF THE BUILDING AS DETERMINED BY THE VALUATION CELL ACCEPTED BY THE A. O. IS AT ` 5,50,000/-. THE A.O. ACCORDINGLY DETERMINED THE TOTAL VALUE OF THE TENALI HOUSE PROPERTY AT ` 8,24,848/- AFTER CONSIDERING THE DETAILED EXPLANAT ION GIVEN BY THE ASSESSEE, KEEPING IN VIEW OF THE OBSERVATION MADE BY THE IT(SS)A NO.1/VIZAG/2012 SRI D. DATYANARAYANA, VISAKHAPATNAM 8 HONBLE ITAT IN IT(SS)A NO.99/VIZAG/2002 DATED 8.8. 2008. ON APPEAL BY THE ASSESSEE, THE LD. CIT(A) HAS CONSIDERED THE VALUE OF THE SITE AS PER THE REGISTERED SALE DEED OF ` 85,630/- AND AS FAR AS COST OF CONSTRUCTION OF THE BUILDING IS CONCERNED, THE LD. CIT(A) HAS GIVEN 15% DEDUCTION BY TAKING INTO CONSIDERATION THE LOCAL RA TES (PWD RATES) AND 10% DEDUCTION TO SELF SUPERVISION AND ACCORDINGLY H E CAME TO THE CONCLUSION THAT THE CONSTRUCTION VALUE OF THE PROPE RTY AT ` 4,47,800/-. ACCORDINGLY, HE DIRECTED THE A.O. TO ADOPT THE TOTA L VALUE OF THE TENALI HOUSE PROPERTY INCLUDING SITE AND CONSTRUCTION AT ` 5,33,430/- ( ` 85,630/- SITE + ` 4,47,800/- BUILDING). 10. SO FAR AS THE OBJECTION RAISED BY THE LD. COUNS EL FOR THE ASSESSEE IN RESPECT OF ASSESSMENT WHICH HAS TO BE MADE IN TH E HANDS OF THE ASSESSEES WIFE, THE LD. CIT(A) HAS OBSERVED THAT T HE ASSESSMENT HAS BEEN COMPLETED KEEPING IN VIEW OF THE OBSERVATIONS MADE BY THE HONBLE ITAT IN THE REVENUES APPEAL IN IT(SS)A NO. 99/VIZAG/2012 DATED 8.12.2008. AFTER CAREFUL CONSIDERATION OF THE ASSE SSMENT ORDER AND ALSO ORDER PASSED BY THE LD. CIT(A), KEEPING IN VIEW OF THE SPECIFIC OBSERVATIONS MADE BY THE ITAT THAT THERE IS NO EVID ENCE OF RECORD WHICH SUGGEST THAT ASSESSEES WIFE HAD SOME INDEPEN DENT SOURCE OF INCOME. IT IS TRITE LAW THAT IN THE CASE OF HOUSE W IFE, IT IS THE IT(SS)A NO.1/VIZAG/2012 SRI D. DATYANARAYANA, VISAKHAPATNAM 9 CUSTOMARY PRACTICE OF HOUSE HOLDER TO PURCHASE PROP ERTY IN THE NAME OF THE WIFE, PARTICULARLY WHEN LADY IS A HOUSE WIFE AN D NO REGULAR SOURCE OF INCOME IS PROVED. THE A.O. KEEPING IN VIEW OF THE OBSERVATIONS MADE BY THE ITAT, CALLED THE ASSESSEE TO EXPLAIN THE SOU RCE OF INVESTMENT. THE ASSESSEES WIFE WAS NOT ABLE TO SUBSTANTIATE TH E SOURCE. THEREFORE, BASED THE OBSERVATION MADE BY THE HONBLE ITAT, ASS ESSMENT WAS COMPLETED. ON APPEAL, THE LD. CIT(A) HAS GIVEN PAR TIAL RELIEF. WE FIND THAT THERE IS NO INFIRMITY IN THE ORDER PASSED BY T HE LD. CIT(A). THIS GROUND OF APPEAL RAISED BY THE ASSESSEE IS DISMISSE D. 11. SO FAR AS GROUND NO.4 OF THE APPEAL IS CONCERNE D, APPEAL RAISED BY THE ASSESSEE IS RELATING TO THE LOSS INCURRED IN BU SINESS IN THE BLOCK ASSESSMENT PERIOD FOR SET OFF AGAINST THE INCOME. THE RELEVANT GROUND IS EXTRACTED AS UNDER: THE COMMISSIONER OF INCOME TAX (APPEALS), VISAKHAPAT NAM, OUGHT TO HAVE ENTERTAINED THE CONTENTION OF THE APPELLANT TH AT THE LOSS INCURRED BY HIM IN HIS BUSINESS IN THE BLOCK ASSESSMENT PERIOD FOR SET OFF AGAINST THE INCOME, INSTEAD OF REJECTING SUCH CLAIM MADE BY THE APPELLANT BEFORE HIM PURELY ON TECHNICAL GROUNDS. AS THE ASSESSEE IS EN TITLED TO THE LOSS FOR SET OFF AGAINST THE UNEXPLAINED INVESTMENT OR UNEXPLAIN ED INCOME DETERMINED IN THE BLOCK ASSESSMENT WHICH ISSUE IN FACT, WAS AL READY ACCEPTED BY THE HONBLE BENCH IN THE APPEAL FILED BY THE APPELLANT IN ITA NO.95/V/2002 DATED 24.3.2003, THE APPELLANT PRAYS THE HONBLE BE NCH TO KINDLY PASS NECESSARY ORDERS BY ALLOWING THE LOSS CLAIMED BY TH E APPELLANT. THE APPEALLANT, THEREFORE, PRAYS THE HONBLE BENCH, FOR RELIEF. IT(SS)A NO.1/VIZAG/2012 SRI D. DATYANARAYANA, VISAKHAPATNAM 10 12. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE LOSS INCURRED BY THE ASSESSEE IN HIS BUSINESS IN THE BLOCK ASSESSMENT PERIOD MAY BE SET OFF AGAINST THE INCOME. 13. ON THE OTHER HAND, THE LD. D.R. HAS SUBMITTED T HAT THIS APPEAL FILED BY THE ASSESSEE IS CONSEQUENT TO THE ORDER PA SSED BY THE ITAT IN THE APPEAL FILED BY THE REVENUE IN ITA NO.99/VIZAG/ 2002 AND THIS ISSUE WAS NOT AT ALL BEFORE THE ITAT. THEREFORE, THE CON SEQUENTIAL ORDER PASSED BY THE A.O. IN PURSUANCE TO THE DIRECTIONS G IVEN BY THE HONBLE ITAT IN IT(SS)A NO.99/VIZAG/2002 DATED 8.8.2008 HAS NOT DEALT THE ISSUE OF SET OFF OF BUSINESS LOSS AGAINST THE INCOM E. THEREFORE, IN THIS CONSEQUENTIAL ORDER, THE ASSESSEE CANNOT RAISE THIS GROUND BEFORE THE TRIBUNAL. 14. WE FIND THAT THE A.O. HAS PASSED THE CONSEQUENTI AL ORDER IN RESPECT OF THE CONSTRUCTION OF THE TENALI HOUSE PRO PERTY KEEPING IN VIEW OF THE OBSERVATIONS MADE BY THE HONBLE ITAT. FROM THE ITAT ORDER THIS ISSUE IS NOT EMANATING, THEREFORE, THIS GROUND RAISED BY THE ASSESSEE CANNOT BE ADJUDICATED. THEREFORE, THIS GR OUND OF APPEAL RAISED BY THE ASSESSEE IS DISMISSED. IT(SS)A NO.1/VIZAG/2012 SRI D. DATYANARAYANA, VISAKHAPATNAM 11 15. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 28 TH JUL16. SD/- SD/- ( . ) ( . ) (G. MANJUNATHA) (V. DURGA RAO) /ACCOUNTANT MEMBER /JUDICIAL MEMBER ! /VISAKHAPATNAM: % /DATED : 28.07.2016 VG/SPS '! (! /COPY OF THE ORDER FORWARDED TO:- 1. / THE APPELLANT SRI D. SATYANARAYANA, PROP: SAI SUDHA LODGE, RLY. NEW COLONY, VISAKHAPATNAM. 2. / THE RESPONDENT THE ACIT, CIRCLE-4(1), VISAKHAP ATNAM 3. ) / THE CIT, VISAKHAPATNAM 4. ) ( ) / THE CIT(A),VISAKHAPATNAM 5. ! , , , , ! / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // /0 , (SR.PRIVATE SECRETARY) , , ! / ITAT, VISAKHAPATNAM