Demi Realtors, Hyderabad V. ACIT., Circle-8(1), Hyderabad

MA 125/HYD/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2688 (ITAT-HYDERABAD)
• Duration Of Justice: 6 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 28-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAMAKRISHNA BANDI
• Assessee Lawyers: J PRABHAKAR
• Section: 132

Judgement Text

MA NO.125 OF 2014 DEMI REALTORS HYDERABAD PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SMT.ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER M.A. NO.125/HYD/2014 (ARISING OUT OF ITA NO.649/HYD/2013) (ASSESSMENT YEAR: 2008-09) M/S. DE MI REALTORS, HYDERABAD PAN: AAFFD 9401 P VS. ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 8(1) HYDERABAD (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI J. PRABHAKAR, CA DEPARTMENT BY: SHRI RAMAKRISHNA B ANDI, (DR) DATE OF HEARING: 09/01/2015 DATE OF PRONOUNCEMENT: 28/01/2015 O R D E R PER SMT. ASHA VIJAYARAGHAVAN, J.M. THIS IS A MISCELLANEOUS APPLICATION FILED BY THE A SSESSEE FOR RECALLING THE ORDER IN ITA NO.649/HYD/2013 DATED 6. 12.2013 UNDER THE FOLLOWING FACTS AND CIRCUMSTANCES: 1) THAT THE ITAT WHILE DECIDING ON THE FACTUM OF FILIN G CONDONATION PETITION OMITTED TO CONSTRUE THAT THE CONDONATION PETITION WAS INDEED FILED AND THAT THE CONTENTS OF THE SAID PETITION WAS BODILY LIFTED AND REPRODUC ED IN PARA 2.9 AT PAGE NO.10 OF THECIT (A)S ORDER DATED 19.2. 2013 BY STATING THAT THERE WAS A DELAY OF 2 DAYS IN FILING THE APPEAL ON ACCOUNT OF INTERVENING HOLIDAYS (SATURDAY AND SU NDAY) AND A CUMULATIVE DELAY OF 4 DAYS IF COGNIZANCE IS N OT TAKEN FOR THE INTERVENING HOLIDAYS. HENCE THERE IS A PATE NT ERROR IN THE ORDER OF THE ITAT AT PAGE NO.9 PARA 14.2 STA TING THAT MA NO.125 OF 2014 DEMI REALTORS HYDERABAD PAGE 2 OF 3 THE ASSESSEE HAS NOT TAKEN ANY PAINS TO FILE THE CONDONATION PETITION BEFORE THE CIT (A). 2) IT WAS SUBMITTED THAT THERE IS AN INTERPRETATIONAL ERROR IN THE ORDER OF THE ITAT WITH REGARD TO THE ACTUAL NUM BER OF DAYS IN THE DELAY FOR THE ADMISSION OF THE APPEAL I N AS SUCH AS THE OSTENSIBLE DATE OF FILING THE APPEAL WOULD R EVEAL THAT THE DELAY IS ONLY 2 DAYS WHILE THE VIEW HELD BY THE CIT (A) AS REGARD THE NUMBER OD DAYS DELAY WAS BASED ON ACT UAL DATE OF ADJUSTMENT OF TAXES IS A CUMULATED SUM OF 6 6 DAYS WHICH HAS BEEN FAITHFULLY REPRODUCED BY THE ITAT AS A RUSE TO DISMISS THE CASE OF THE ASSESSEE IN LIMINI. 3) THE ASSESSEE SUBMITTED THAT THE ADJUSTMENT OF CASH SEIZED IN THE SUM OF RS.2.00 LAKHS ON 5.4.2010 IS A NON EV ENT FOR THE PURPOSE OF CALCULATION OF DELAY SINCE THE MONEY WAS ALREADY IN THE POSSESSION OF THE DEPARTMENT, EVEN B EFORE THE TOTAL INCOME IN RESPECT OF THIS A.Y WAS IN THE CONTEMPLATION OF THE DEPARTMENT OR THE ASSESSEE AS THE CASE MAY BE AND THE MERE FACT OF A FAILURE TO ADJUS T THE SAME OR ADJUSTING THE SAME ON 5.4.2010 DOES NOT OBL ITERATE THE FACT THAT MONEIS BELONGING TO THE ASSESSEE ARE AVAILABLE WITH THE DEPARTMENT SINCE THE DATE OF ITS SEIZURE A ND LYING IN THE P.D. A/C TO THE DETRIMENT OF THE ASSESSEE. 4) ASSESSEE PRAYED THAT THIS CRUCIAL FACTUAL PROPOSITI ON SHOULD BE TREATED AS A MISTAKE OF FACT IN THE ORDER OF THE ITAT IN AS MUCH AS THE ASSESSEE IS NOT RESPONSIBLE FOR UNILATE RAL ACTS OF THE DEPARTMENT IN ITS ADJUSTMENT OF OR ITS FAILU RE TO ADJUST THE SEIZED CASH AGAINST EXISTING LIABILITY U /S 132 B OF THE ACT. 5) ASSESSEE FURTHER SUBMITTED THAT NO OPPORTUNITY WAS GRANTED AT THE TIME OF HEARING OF THE APPEAL BY THE ITAT IN MA NO.125 OF 2014 DEMI REALTORS HYDERABAD PAGE 3 OF 3 THE SECOND ROUND OF APPEAL AS TO THE FINDING ABOUT THE DETRIMENTAL VIEW THAT RS.2.00 LAKHS WAS ADJUSTED AG AINST THE TAX DUES ON REGULAR DEMAND AND HENCE ALLEGEDLY NOT AVAILABLE FOR ADJUSTMENT U/S 249(4) OF THE ACT. 2. AFTER GOING THROUGH THE MISCELLANEOUS APPLICATIO N FILED BY THE ASSESSEE, WE FIND THAT THERE APPEARS CERTAIN MI STAKES APPARENT ON RECORD. WE FIND IT NECESSARY TO RECALL THE ORDER OF THE ITAT AND DIRECT THE REGISTRY TO POST THE CASE FOR A FRESH HEARING AND INFORM THE PARTIES ACCORDINGLY. 3. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH JANUARY, 2015. S D/ - S D/ - (P.M. JAGTAP) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED 28 TH JANUARY, 2015. VNODAN/SPS COPY TO: 1. M/S. DEMI REALTORS, 8-3-167/8/133/301 PLOT NO.133, LALITANILAYAM APARTMENTS, RAJEEVNAGAR, KALYANNAGAR, HYDERABAD 2. ACIT, CIRCLE 8(1) IT TOWERS, AC GUARDS, HYDERABAD 3. THE CIT(A)-III HYDERABAD 4. THE CIT-II HYDERABAD 5. THE DR, ITAT, HYDERABAD 6. GUARD FILE BY ORDER