Pulimi Lakshmanamma, Nellore V. The Asst. CIT, Nellore

ITSSA 10/HYD/2012

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0304 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 14 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 24-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 10-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJEEV BENJWAL
• Assessee Lawyers: K UMA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI P.M.JAGTAP, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER IT(SS)A NO.1 0 /HYD/1 2 (BLOCK PERIOD FROM 1991 - 92 TO 2001 - 02) SMT. PULIMI LAKSHMANAMMA, NELLORE. (PAN AJHPP 9826 F) V/S. ASST. COMMISSIONER OF INCOME - TAX, CIRCLE 1, NELLORE. (APPELLANT) (RESPONDENT) APPELLANT BY : S MT. K.UMA DEPARTMENT BY : SHRI RAJEEV BENJWAL DR DATE OF HEARING 18 .0 9 .2014 DATE OF PRONOUNCEMENT 24.09.2014 O R D E R PER P.M. JAGTAP, ACCOUNTANT MEMBER : THIS APPEAL FILED BY TH E ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX(APPEALS) GUN T UR DATED 30.11.2011. 2. THE RELEVANT FA C TS OF THE C A S E GIVING RISE TO THIS APPEAL ARE AS UNDER: 2.1 THE ASSESSEE IS AN IN D I V I D UAL WHO DERIVES INCOME F R OM HOU S E PROPERTY, CAPITAL GAIN S AND OTHER SOURCES. A SEARCH AND S E IZURE OPERATION UNDER S.132 OF THE A C T WAS CONDU C T E D IN TH E CA S E OF SHRI PULIMI DINAKAR REDDY AND P ULIMI K AMALAKAR REDDY ON 9.11.2000. DURING THE SAID ACTION, CERTAIN INCRIMINATING DOCU M ENTS RELATING TO TH E ASSESSEE WERE FOUND. A NOTICE UNDER S.158BD WAS TH E R E FORE ISSUED BY THE ASSESSING OFFICER ON 6.11.2002 IN RESPONSE I TA (SS) NO . 10 /H YD/20 1 2 SMT. PULIMI LAKSHMANAMMA, NELLORE. 2 TO WHICH A RETURN OF INCOM E F OR THE BLOCK PERIOD WAS FILED BY THE ASSESSEE ON 11.11.2002. IN THE ASSESSMENT ORIGINALLY COMPLETED UNDER S.158BD READ WITH S.158BC ON 29.11.2004, ADDITION S ON ACCOUNT OF UNDISCLOSED INCOME W ERE MADE IN THE HANDS OF THE ASSESSEE O N ACCOUNT OF CAPITAL GAINS AMOUN T IN G TO RS.10,650, RS.12,313 AND RS.27,534 IN ASSESSMENT YEARS 1993 - 94, 1994 - 95 AND 1996 - 97 RESPECTIVELY. 2.2 AGAINST THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER UN D ER S.158BD READ WITH S.158BC, APPEAL AS PREFER RED BY TH E ASSESSEE BEFORE THE LEARNED CIT(A) RAISING THE FOLLOWING ISSUES - A ) LONG TERM C APITAL GAINS SHOULD B E TAXED AT 20% RATHER THAN 60% B ) NO SURCHARGE SHOULD B E L E VI E D C ) REBATE UN D ER S.88B SHOULD B E ALLOWED. THE LEARNED CIT(A) VIDE ORDER DATED 10.8.200 5 DISPOSED OFF THE APPEAL OF THE ASSESSEE ALLOWING ONLY THE ISSUE REL A TIN G TO CHARGEABILITY O F SURCHARGE IN FA V OUR OF THE ASSESSEE . THE OTHER TWO ISSUE S RAISED BY THE ASSESSEE IN HER APPEAL W E RE DECIDED BY THE LEARNED CIT(A) AGAINST THE ASSESSEE. 2.3 AGA IN S T THE ORDER OF THE LEARNED CIT(A) DATED 10.8.2005, THE ASSESSEE P R EFERRED AN APPEAL BEFORE THE T R I BU NAL R AISING THE I S SUES OF RATE OF TAX PAYABLE ON CAPITAL GAINS AND NON - GRANT OF REBATE UN DE R S.88B. HE ALSO RAISED ONE MORE ISSUE BEFORE THE T R IBUNAL R EGARDING NON - GRANT OF BASIC EXEMPTION LIMIT FOR ASSESSMENT YEARS 1993 - 94, 1994 - 95 AND 1996 - 97. THE TRIBUNAL VIDE ITS ORDER DATED 9.10.2009 PASSED IN IT(SS) A NO.147/HYD/2005 REJECTED THE CLAIM OF THE ASSESSEE FOR THE CONCESSIONAL RATE OF TAX OF 20% ON CAP ITAL GAINS. THE REMAINING I TA (SS) NO . 10 /H YD/20 1 2 SMT. PULIMI LAKSHMANAMMA, NELLORE. 3 TWO ISSUES RELATING TO NON - GRANT OF REBATE UNDER S.88B AND NON - GRANT OF BASIC EXEMPTION LIMIT FOR ASSESSMENT YEARS 1993 - 94, 1994 - 95 AND 1996 - 97, HOWEVER, WERE RESTORED BY THE TRIBUNAL TO THE FILE OF THE ASSESSING OFFICER FOR DE CIDING THE SAME AFRESH, AFTER VERIFYING THE RELEVANT FACTS. 2.4 AS PER THE DIRECTION OF THE TRIBUNAL, A FRESH ASSESSMENT ORDER UNDER S.158BD READ WITH S.158BC AND S.254 WAS PASSED BY THE ASSESSING OFFICER ON 24.12.2010, WHEREIN HE DISALLOWED THE CLAI M OF THE ASSESSEE FOR BASIC EXEMPTION LIMIT AFTER HAVING FOUND, ON THE BASIS OF THE FOLLOWING CHART , THAT THE TOTAL INCOME OF THE ASSESSEE FOR ALL THE THREE RELEVANT YEARS WAS ACTUALLY MORE THAN THE BASIC EXEMPTION LIMIT - ASSESSMENT YEAR NET INCOME ADMITTED UNDISCLOSED INCOME DETERMINED TOTAL INCOME 1993 - 94 50035 10,650 60,685 1994 - 95 53247 12,313 65,560 1996 - 97 122490 27,534 1,50,024 AS REGARDS THE CLAIM OF TH E ASSESSEE FOR REBATE UNDER S.88B, T HE ASSESSING OFFICER FOUND TH A T THE ASSESSEE HA D NOT ATTAINED THE AGE OF 65 YEARS IN THE PREVIOUS YEARS RELEVANT TO THE ASSESSMENT YEARS 93 - 94 AND 1994 - 95 . H E THEREFORE , DISALLOWED THE CLAIM O F TH E ASSESSEE FOR REBATE UNDER S.88B FOR THE SAID TWO YEARS. AS REGARDS THE ASSESSMENT YEAR 19 96 - 97, THE ASSESSING OFFICER FOUND THAT THE TOTAL INCOM E OF TH E ASSESSEE FOR THE SAID YEAR , BEIN G MORE THAN RS.1,20,000, SHE WAS NOT ENTITLED FOR REBATE UN D ER S.88 B . THE CLAIM O F TH E ASSESSEE FOR REBATE UNDER S.88 B, TH E R E FORE, WAS DISALLOWED BY THE ASSESSI NG OFFICER IN ASSESSMENT YEAR 1996 - 97 ALSO. I TA (SS) NO . 10 /H YD/20 1 2 SMT. PULIMI LAKSHMANAMMA, NELLORE. 4 2.5 AGAINST THE O R D E R PASSED BY THE ASSESSING OFFICER UN D E R S.158BD READ WITH S.158:BC AND S.254 OF THE ACT, ASSESSEE PREFERRED APPEAL BEFORE THE LEARNED CIT(A), AND IN A D DITION TO THE ISSUES RELATING TO ITS CLAIM FOR GRANT OF REBATE UNDER S.88B AS WELL AS THE BASIC EXEMPTION LIMIT, A NEW ISSUE WAS RAISED BY THE ASSESSEE CHALLENGING THE VALIDITY OF THE ASSESSMENT MADE BY THE ASSESSING OFFICER UNDER S.158BD READ WITH S.158BC AND 254 OF THE ACT, ON THE GROUND T HAT THE ASSESSING OFFICER, VIZ. ACIT, CIR C LE 1, NELLORE, WHO PASSED THE SAID ORDER , HAD NO JURISDICTION OVER THE CASE OF THE ASSESSEE. 2.6. TH E LEARNED CIT(A) , HO W EVER , DISMISSED THE APPEAL O F TH E ASSESSEE ON ALL TH E ISSUES, AFTER HAVING FOUND THE SAM E TO BE DEVOID OF MERIT. AGGRIEVED BY TH E ORDER OF THE LEARNED CIT(A), ASSESSEE HAS PREFERRED THIS APPEAL BEFOR E T H E TRIBU N AL. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. AS R E GARDS THE ISSUE RAI SED IN GROUND NO.1 BY THE ASSESSEE, CHALLENGING THE VALIDITY O F THE ASSESSMENT MADE BY THE ASSESSING OFFICER UN D ER S .158BD READ WITH S .158BC AND S.254 OF THE ACT ON THE GROUND THAT THE ASSESSING OFFICER, NAMELY, ACIT CIRCLE 1, NELLORE, W H O PASSED THE SAI D ORDER HAD NO JURISDICTION OVER THE ASSESSEES CASE, THE LEARNED C OUN S EL FOR THE ASSESSEE HAS RELIED ON THE O R DER ORIGINALLY PASSED IN THE CA S E OF THE ASSESSEE UNDER S.158BD R EAD WITH S.158BC OF THE ACT DATED 24.11.2004 BY ACIT , CENTRAL CIRCLE, TIRUPATI, TO CONTEND THAT ASST. COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE, TIRUPATI ALONE HAD THE JURI S DI C T I ON O V ER THE ASSESSEE S CA S E AND NOT THE ACIT C IRCLE 1, NELLORE. AN ORDER PASSED BY THE COMMISSIONER OF INCOME - TAX VIJAYAWADA UNDER S .127(1) OF THE IT ACT, 1961 ON 5.1.20 0 1 , A COPY O F WHICH IS PL A CED ON RECORD BEFORE US, HO W EVER, I TA (SS) NO . 10 /H YD/20 1 2 SMT. PULIMI LAKSHMANAMMA, NELLORE. 5 SHOWS THAT THE C ASE OF THE ASSESSEE WAS TRANSFERRED TO CIRCLE I, NELLORE, AND THE LEARNED COUNSEL FOR TH E ASSESSEE HAVING FAILED TO BRING ON RECORD BEFORE US , ANY SUCH ORDER PASSED UNDER S.1 2 7 SUBSEQUENTLY TO TRANSFER THE C A S E OF THE ASSESSEE BACK TO ACIT, CENTRAL CIRCLE TIRUPATI, WE ARE UNABLE TO ACCEPT HER CONTENTION THAT ACIT CENTRAL CIRCLE , TIRUPATI WAS HAVING JURISDICTION OVER THE CASE OF THE ASSESSEE WHEN THE ORDER UNDER S.158B D READ WITH S.158BC AND S.254 W A S PASSED ON 24.12.2010 AND NOT ACIT CIRCLE 1, NELLORE. WE THEREFORE, FIND NO MERIT IN GROUND NO.1 RAISED IN THE APPEAL O F THE ASSESSEE AND DISMISS THE SAME. 4. AS RE GARDS THE ISSUE RAISED IN G R OUN D NO.2 REL A TING TO TH E CL A IM OF THE ASSESSEE FOR REBATE UNDER S.88B OF THE ACT, IT IS OBSER V ED THAT SUCH REBATE FOR ASSESSMENT YEAR 1996 - 97 WAS DISALLOWED BY THE ASSESSING OFFICER AFTER HAVING FOUND THAT THE TOTAL INCOME O F TH E ASSESSEE FOR THE SAID YEAR WAS MORE THAN RS.1, 2 0,00 0 AND AS SUCH , SHE WAS NOT ENTITLED FOR THE REBATE UNDER S.88B. A T THE TIME OF HEARING B E FOR E US, THE LEARNED COUNSEL F OR THE ASSESSEE HAS NO T BEEN ABLE TO DISPUTE OR CONTROVERT THIS FINDING OF FACT RECO R DED BY THE ASSESSING OFFICER AND THIS BEING SO, WE FIND NO JUSTIFIABLE REASON TO INTERFERE WITH THE IMPU G N E D OR D ER OF THE LEARNED CIT(A) CONFIRMING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER ON ACCOU N T O F ASSESSEES CLAIM FOR REBATE UNDER S.88B OF THE AC T FOR THE ASSESSMENT YEAR 1996 - 97. THE SAME IS , THER E FORE , UPHELD AND THE G R OUND NO.2 OF THE ASSESSEES APPEAL IS DISMISSED. 5 . AS REGARDS THE ISSUE RAISED IN GROUND N O.3 REL A TING T O TH E ASSESSEE S CLAIM FOR GRANT OF BASIC EXEMPTION LIMIT FOR ASSESSMEN T YEARS 1993 - 94, 1994 - 95 AND 1996 - 97, I T IS OBSERVED T HAT THIS CL A IM OF THE ASSESSEE WAS REJ E CTED BY TH E ASSESSING OFFICER , AFTER HAVIN G FOUND THAT THE TOTAL INCOME O F TH E ASSESSEE FOR ALL THESE THREE YEARS AS FINALLY ASSESSED WAS MORE THAN THE BASIC I TA (SS) NO . 10 /H YD/20 1 2 SMT. PULIMI LAKSHMANAMMA, NELLORE. 6 EXEMP TION LIMIT. A T THE TIME OF H E ARING, THE LEARNED COUN SE L FOR THE ASSESSEE HAS NO T BEEN ABL E TO CONTROVERT OR REBUT THIS FINDING OF FACT RECORDED BY TH E ASSESSING OFFICER . WE, TH E R E F O RE, FIND NO JUSTIFIABLE REASON TO INTERFERE WITH THE IMPU G N E D ORDER OF THE LEARNED CIT(A) CONFIRMING TH E ACTION OF THE ASSESSING OFFICER IN DI S ALLOWING TH E ASSESSEES CLAIM FOR BASIC EXEMPTION LIMIT FOR THE ASSESSMENT YEARS 1993 - 94, 1994 - 95 AND 1996 - 97. THE SAME IS THER E FORE , UPHELD ON THIS ISSUE AND G R OUND N O.3 O F THE ASSESSEE IS DISMISSED. 6 . IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 24 TH SEPTEMBER, 2014 SD/ - SD/ - ( SAKTIJIT DEY ) ( P.M.JAGTAP ) JUDICIAL MEMBER ACCOUNTANT MEMBER DT/ - 24 TH SEPTEMBER, 2014 COPY FORWARDED TO: 1. SMT. PULIMI LAKSHMANAMMA, 1 ST FLOOR, 14/91, KAPU STREET, NELLORE 524 001 2 . DY. COMMISSIONER OF INCOME - TAX CIRCLE 1 , NELLORE 3. 4. COMMISSIONER OF INCOME - TAX(APPEALS), GUNTUR COMMISSIONER OF INCOME - TAX, GUNTUR 5. DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S