Smt. N. Andalamma, Hyderabad V. ACIT, Circle-2(1), Hyderabad

MA 110/HYD/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9018 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 17-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DIWAKAR PRASAD
• Assessee Lawyers: V RAGHAVENDRA RAO
• Keywords: Documents seized

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER M.A. NO. 109/HYD/2012 (IN IT(SS)A NO. 25/HYD/2007 BLOCK PERIOD : 1996-97 TO 1999-2000 ENDING ON 12/0 6/2000) SMT. ANDALAMMA LR TO N. NARASIMHA, APPLICANT HYDERABAD VS. ASSTT. COMMISSIONER OF INCOME TAX, RESPONDENT CIRCLE - 7(1), HYDERABAD. M.A. NO. 110/HYD/2012 (IN IT(SS)A NO. 51/HYD/2009 BLOCK PERIOD : 01/04/1990 TO 12/06/2000) SMT. ANDALAMMA, APPLICANT HYDERABAD VS. ASSTT. COMMISSIONER OF INCOME TAX, RESPONDENT CIRCLE - 7(1), HYDERABAD. APPLICANT BY : SHRI V. RAGHAVENDRA RAO RESPONDENT BY : SHRI DIWAKAR PRASAD DATE OF HEARING : 24/08/2012 DATE OF PRONOUNCEMENT : 24 /08/2012 ORDER PER ASHA VIJAYARAGHAVAN, J.M.: THESE MISCELLANEOUS APPLICATIONS FILED BY THE ASSES SEE ARISE OUT OF THE ORDER OF ITAT B BENCH, HYDERABAD BENCH ES, HYDERABAD, IN APPEALS IT(SS)A NO. 25/HYD/2007 & IT(SS)A NO. 51 /HYD/2009 DATED 09/03/2012. M.A. NO. 109/H/12 2. IN THE M.A., THE ASSESSEE STATED THAT THERE IS A MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL, AS THE BENCH HAS NOT TAKEN 2 MA NOS. 109/HYD/12 & 110/HYD/12 SMT. ANDALAMMA NOTE OF THE LACK OF SERVICE OF NOTICE U/S 158BD AND TO THIS EFFECT THE FOLLOWING GROUND OF APPEAL HAS BEEN FILED BY THE AS SESSEE ON 12/04/2010, WHICH HAS NOT BEEN DEALT BY THE TRIBUNA L WHILE PASSING THE ORDER: NEITHER THE AO HAVING JURISDICTION OVER THE PERSON S SEARCHED NOR THE AO WHO HAS MADE THE ASSESSMENT IN THE CASE OF THE APPELLANT HAS RECORDED SATISFACTION OR THAT THEY SA TISFIED THEMSELVES THAT ANY OF THE DOCUMENTS BULLION, JEWEL LERY ETC. FOUND DURING THE SEARCH BELONGED TO THE ASSESSEE. T HE INITIATION OF PROCEEDINGS U/S 158BD OF THE ACT IS N OT VALID IN LAW. THE JUDGMENT OF SUPREME COURT IN THE CASE OF M ANISH MAHESWARI VS. ACIT, 289 ITR 341 APPLIES. IT WAS THEREFORE CONTENDED THAT THE TRIBUNAL HAS NO T BEEN NOTICED AND APPLIED THE DECISION OF THE HONBLE SUP REME COURT IN THE CASE OF MANISH MAHESWARI (SUPRA) AND, THEREFORE , THERE IS A MISTAKE CREPT IN THE ORDER OF THE HONBLE BENCH. M.A. NO. 110/H/12 3. IN THIS M.A., THE ASSESSEE STATED THAT ADDITIONA L GROUNDS OF APPEAL HAS BEEN FILED ON 27/04/10. LATER CONCISE AN D REVISED GROUNDS OF APPEAL HAVE BEEN FILED ON 30/04/10 AT TH E INSTANCE OF THE HONBLE TRIBUNAL. GROUNDS WERE TAKEN AGAINST TH E JURISDICTION ASSUMED BY THE AO. THE RELEVANT GROUND IS REPRODUCE D HERE IN BELOW FOR READY REFERENCE: GROUND NO. 2A OF THE GROUNDS OF APPEAL IS AS UNDER: - THE DCIT, CC-I (AO) WHO PASSED THE ASSESSMENT ORDE R LACKED JURISDICTION BECAUSE THERE WAS NO EVIDENCE OF THE S ATISFACTION REQUIRED U/S 158BD OF THE IT ACT RECORDED BY THE AO HAVING JURISDICTION OVER SRI AMBATI SATYANARAYANA, THE SEA RCHED PERSON, THAT THERE WAS ANY UNDISCLOSED INCOME BELON GING TO THE ASSESSEE DISCOVERED IN THE COURSE OF SEARCH OF PREM ISES OF SRI AMBATI SATYANARAYANA, THE SEARCH PERSON, THAT THERE WAS ANY UNDISCLOSED INCOME BELONGING TO THE ASSESSEE DISCOV ERED IN THE COURSE OF SEARCH OF PREMISES OF SRI AMBATI SATYANAR AYANA, NOR WAS THERE ANY HANDING OVER OF BOOKS OF ACCOUNT OTHE R DOCUMENTS SEIZED IN THE COURSE OF SEARCH. 3 MA NOS. 109/HYD/12 & 110/HYD/12 SMT. ANDALAMMA IN THE CONCISE AND REVISED GROUNDS OF APPEAL GROUN D NO. 2 IS AS UNDER:- THE ASSESSMENT IS NOT VALID IN LAW BECAUSE THE SATI SFACTION REQUIRED U/S 158BD HAS NOT BEEN REACHED OR RECORDED BY THE AO HAVING JURISDICTION OVER THE SEARCHED PERSON, SR I AMBATI SATYANARAYANA GARU, THE DECISION OF THE SUPREME COU RT IN THE CASE OF CIT VS. MANISH MAHESWARI, 289 ITR 341 IS AP PLICABLE 6. IT WAS STATED THAT THE ABOVE GROUNDS BOTH RELATI NG TO JURISDICTION ASSUMED BY THE AO HAS NOT BEEN DEALT W ITH IN THE COMMON ORDER OF THE HONBLE BENCH, THEREFORE, THERE IS A MISTAKE CREPT IN THE ORDER OF THE TRIBUNAL IN SO FAR AS THE JURISDICTIONAL GROUND, WHICH GOES TO THE ROOT OF THE MATTER HAS BE EN OMITTED TO BE CONSIDERED. 7. IN THE TWO MAS THE ASSESSEE PRAYED THAT THE GROU ND REGARDING JURISDICTION BE TAKEN UP FOR DISPOSAL BY AMENDING T HE ABOVE ORDER OF THE TRIBUNAL. 8. WE HAVE HEARD THE PARTIES AND NOTED THE CONTENTS IN THE M.A.S RAISED BY THE ASSESSEE. WE FIND THAT THERE IS A MIS TAKE CREPT IN THE ORDER OF THE TRIBUNAL AS CONTENDED BY THE ASSESSEE. THEREFORE, THE ORDER OF THE TRIBUNAL IS RECALLED TO DISPOSE OF THE GROUNDS RAISED BY THE ASSESSEE AS ABOVE. THE REGISTRY IS DIRECTED TO FIX THE APPEAL ON 04/12/2012 FOR HEARING AND ADJUDICATING THE GROUNDS (SUPRA), WHICH IS ANNOUNCED IN THE OPEN COURT. 4 MA NOS. 109/HYD/12 & 110/HYD/12 SMT. ANDALAMMA 9. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS FI LED BY THE ASSESSEE ARE DISPOSED OF, AS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT ON 24/08/2012. (CHANDRA POOJARI) (ASHA VIJAYARAGH AVAN) ACCOUNTANT MEMBER JUDICIAL MEMBE R HYDERABAD, DATED: 24 TH AUGUST, 2012. KV COPY TO:- 1) SMT. ANDALAMMA, M/S GP ASSOCIATES, CAS, 603, CYBER HEIGHTS, PLOTS NO. 13, ROAD NO. 2, BANJARA HILLS, HYDERABAD, C/0 SMT. N. ANADALAMMA, 11-6-192/3/A, NAMPALLY, HYDERABAD 2) ACIT- CIRCLE 7(1), HYDERABAD. 3) THE CIT (A), GUNTUR & HYDERABAD 4) THE CIT, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYD ERABAD.