The Assistant Commissioner of Income Tax, Circle-3(1), , Visakhapatnam V. Rajendra Bhararia, Visakhapatnam

MA 01/VIZ/2020

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3255 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-03-2020
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 29-01-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B RAMA KRISHNA
• Keywords: Audit objection; Reason to believe
• Section: 148; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , HONBLE ACCOUNTANT MEMBER M.A.NO. 01 /VIZ/2020 (ARISING OUT OF I . T . A . NO. 4 9 8/VIZ/201 9 ) (ASST. YEAR : 20 1 1 - 1 2 ) D CIT, CIRCLE - 3 (1), VISAKHAPATNAM. VS. RAJENDRA BHARARIA, B - 101, VUDA APARTMENTS , MMTC COLONY, SEETHAMMADHARA, VISAKHAPATNAM. PAN NO. AFZPB 9622 B (APP LICANT ) (RESPONDENT) ASSESSEE BY : SHRI G.V.N. HARI , A DVOCATE . DEPARTMENT BY : SHRI B.RAMA KRISHNA , SR. DR DATE OF HEARING : 06 / 0 3 /2020 . DATE OF PRONOUNCEMENT : 06 / 0 3 /20 20 . O R D E R PER V. DURGA RAO , JUDICIAL MEMBER BY PREFERRING THIS MISC. APPLICATION, REVENUE SEEKS RECALL OF THE ORDER PASSED BY THIS TRIBUNAL IN ITA NO.4 9 8 /VIZ/2019 , DATED 23 /0 8 /2019 ON THE GROUND THAT THERE IS AN AUDIT OBJECTION , THEREFORE P A RA 10(C) OF CBDT CIRCULAR NO. 03/2018, DATED 11/07/2018 IS COVERED BY THIS CASE. 2. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE GROUNDS OF APPEAL AND GONE THROUGH THE CBDT CIRCULAR. 2 M A NO. 01/VIZ/2020 ( RAJENDRA BHARARIA ) 3. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1) THE ORDER OF THE LD.CIT(A ) - 9, HYDERABAD IS ERRONEOUS ON FACTS AND IN LAW. 2) THE LD.CIT(A) IS NOT CORRECT IN HOLDING THAT THE NATURE OF REMUNERATION CANNOT BE CHANGED UNLESS THERE IS CONCRETE EVIDENCE THAT THE EMPLOYER/EMPLOYEE RELATIONSHIP EX ISTS BETWEEN THE COMPANIES AND THE ASSESSEE DURING THIS YEAR, MORE PARTICULARLY WHEN THE EXPLANATION 2 OF SECTION 15 OF THE ACT DOES NOT EXCLUDE THE RECEIPT BY DIRECTOR OF A COMPANY FROM THE SCOPE OF SEC. 15 OF THE ACT AS AT THE RELEVANT POINT OF TIME. 3) THE LD.C1T(A) IS NOT CORRECT IN LAW IN HOLDING THAT THERE WAS NO NEW INFORMATION BEFORE ISSUE OF NOTICE U/S. 148 BUT REAPPRAISAL OF SAME CASE RECORD, MORE PARTICULARLY WHEN THE ASSESSING OFFICER HAS A REASON TO BELIEVE THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT AND SATISFIED HIMSELF THAT IT IS A FIT CASE FOR ISSUE OF NOTICE U/S. 148 OF THE ACT WHICH WAS APPROVED BY THE COMMISSIONER OF INCOME - TAX. 4) THE APPELLANT CRAVES LEAVE TO ADD OR DELETE OR AMEND OR SUBSTITUTE ANY GROUND OF APPEAL BEFORE AND/OR AT THE TIME OF HEARING OF APPEAL. BESIDE THE MERIT IN FACTS AND IN LAW, IT IS ALSO SUBMITTED THAT THERE IS AN AUDIT OBJECTION IN THIS CASE. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF APPEAL HEARING, IT IS PRAYED THAT DISALLOWANCES MADE ON ACCOUNT OF EXPENDITURE CLAIMED BY THE ASSESSEE IN RESPECT OF LOSS ON SALE OF SHARES, LOSS FROM INTEREST AND EXPENDITURE TOWARDS BANK CHARGES TOTALING RS.1,89,187/ - BE RESTORED. 4 . W E FIND FROM THE GROUNDS OF APPEAL RAISED BY THE DEPARTMENT WHEREIN IT HAS BEEN STATED THAT THERE IS AN AUDIT OBJECTION IN THIS CASE, THEREFORE, IN OUR OPINION, THIS CASE COMES UNDER THE EXCEPTIONS PROVIDED IN CBDT CIRCULAR NO.03/2018 , DATED 11/07/2018, THEREFORE THERE IS A MISTAKE APPARENT ON RECORD , HENCE, IT HA S TO BE RECALLED. ACCORDINGLY, RECALLED. REGISTRY IS 3 M A NO. 01/VIZ/2020 ( RAJENDRA BHARARIA ) DIRECTED TO POST THIS APPEAL FOR HEARING ON 23/03/2020 . SINCE THE DATE OF HEARING IS ANNOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE PARTIES, NO SEPARATE NOTICE IS REQUIRED TO BE ISSUED. 5 . IN THE RESULT, MISC. APPLICATION FILED BY THE REVENUE IS ALLOWED . ORDER PRONOUNCED IN OPEN COURT ON TH IS 06 TH DAY OF MARCH , 2020 . S D / - S D / - (D.S. SUNDER SINGH) (V. DURGA RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 06 TH MARCH , 20 20 . VR/ - COPY TO: 1. THE ASSESSEE RAJENDRA BHARARIA, B - 101, VUDA APARTMENTS, MMTC COLONY, SEETHAMMADHARA, VISAKHAPATNAM. 2. THE REVENUE DCIT, CIRCLE - 3(1), VISAKHAPATNAM. 3. THE CIT - 1 , VISAKHAPATNAM. 4. THE CIT(A) - 9 , HYDERABAD. 5. THE D.R . , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.