Gurijala Srinivas Goud, Medak Dist, Hyderabad V. ACIT, Central Ciircle-1, Hyd, Hyderabad

MA 15/HYD/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7066 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 27-07-2018
• Assessment Year: 2009-2010
• Appeal Filed On: 31-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K GOPALAKRISHNA
• Assessee Lawyers: A V RAGHURAM
• Keywords: Search and seizure; Reasonable cause; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A BENCH: HYDERABAD BEFORE SMT. P. MADHAVI DEV I , JUDICIAL MEMBER AND SHRI RIFAUR RAHMAN, ACCOUNTANT MEMBER M.A. NO . 15 /HYD/201 7 (ARISING OUT OF ITA. NO. 963/HYD/2013 ) ASSESSMENT YEAR: 2009 - 2010 MR. GURIJALA SRINIVAS GOUD, RAMACHANDRAPURAM, MEDAK DISTRICT. PAN: AEKPG 1515 C VS. ACIT, CENTRAL CIRCLE - 1, HYDERABAD. (APPELLANT) (RESPONDENT) FOR ASSESSEE: SHRI A.V. RAGHURAM FOR REVENUE : SHRI K. GOPALA KRISHNA, DR DATE OF HEARING : 27.07.2018 DATE OF PRONOUNCEMENT : 10 .0 8 .2018 ORDER PER SMT. P. MADHAVI DEVI, JM . THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSESSEE SEEKING RECALL OF THE ORDER OF THE TRIBUNAL DATED 22.09.2016 IN ITA NO.963/HYD/2013. IN THE PETITION , THE ASSESSEE HAS STATED AS UNDER: - THE PETITIONER IS AN INDIVIDUAL DERIVING INCOME FROM AGRICULTURE BESIDES OTHER SOURCES. THE INCOME - TAX AUTHORITIES CONDUCTED SEARCH AND SEIZURE OPERATIONS IN THE CASE OF SRI O.S.S . PRASAD AND CONSEQUENTLY A NOTICE U/S 153C WAS ISSUED TO THE PETITIONER. THE APPELLANT FILED THE RETURN OF INCOME ON 29.10.2010. THE ASST. COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE - 1, HYDERABAD COMPLETED THE ASSESSMENT U/S 143(3) R.W.S. 153C OF THE LT. A CT VIDE ORDER DATED 30.11.2010 DETERMINING THE TOTAL INCOME AT RS.1,92,69,356/ - INCLUDING LTCG OF RS.1,89,69,356/ - ARRIVED AT BY THE ASSESSING OFFICER ON SALE OF AGRICULTURAL LAND TO 5MT. O. PADMAVATHI, WIFE OF SRI O.S.S. PRASAD. AGGRIEVED WITH THE ORDER O F ASSESSMENT, THE PETITIONER FILED AN APPEAL BEFORE THE COMMISSIONER OF INCOME - TAX (APPEALS) AND THEREAFTER BEFORE THE HON'BLE INCOME - TAX APPELLATE TRIBUNAL, HYDERABAD. THERE WAS A DELAY IN FILING THE APPEAL BEFORE THE HON'BLE ITAT AS THE PETITIONER WAS NO T KEEPING GOOD HEALTH. THE PETITIONER ALSO FILED AN 2 APPLICATION REQUESTING FOR CONDONATION OF DELAY EXPLAINING THE REASONS FOR NOT FILING THE APPEAL IN TIME. THE HON'BLE ITAT DISPOSED OF THE APPEAL VIDE ORDER IN ITA NO.963/HYD/2013 DATED 22.9.2016. THE HON 'BLE ITAT DISMISSED THE APPEAL AS UNADMITTED ON THE GROUND THAT THE APPEAL IS BARRED BY LIMITATION AND THE PET I TION FILED BY THE PETITIONER REQUESTING FOR CONDONATION OF DELAY OF 136 DAYS ON HEALTH GROUNDS IS NOT SUPPORTED BY MEDICAL CERTIFICATE. IN THIS REGARD IT IS HUMBLY SUBMITTED THAT THE MATTER OF REPRESENTATION OF APPEAL BEFORE THE HON'BLE TRIBUNAL WAS ENTRUSTED TO SRI S . RAMA RAO, ADVOCATE. THE PETITIONER WAS INTRODUCED TO THE SAID ADVOCATE BY SRI O.S.S . PRASAD WHOSE MATTERS ARE ALSO ENTRUSTED TO TH E SAID ADVOCATE. SRI O.S.S. PRASAD WAS LIAISONING WITH THE OFFICE OF THE ADVOCATE ALONGWITH HIS MATTERS. THE PETITIONER UNDERSTANDS THAT COMMUNICATIONS WERE SENT TO SRI O.S.S. PRASAD REGARDING THE PRODUCTION OF MEDICAL RECORD OF THE PETITIONER PERTAINING T O PERIOD JANUARY, 2013 TO MAY, 2013 TO SUBSTANTIATE DELAY IN FILING THE APPEAL. THE PETITIONER HUMBLY SUBMITS THAT SUCH INTIMATIONS FROM THE OFFICE OF THE ADVOCATE WERE NOT IN THE KNOWLEDGE OF THE PETITIONER. THE MAIL SENT THROUGH INTERNET ON 19.9.2016 TO SRI O.S.S . PRASAD WAS ALSO NOT INTIMATED TO THE PETITIONER AS THE SAID SRI O.S.S . PRASAD IS REPORTEDLY OUT OF STATION TO VISAKHAPATNAM ATTENDING ON HIS SISTER. HOWEVER, THE PETITIONER RECEIVED A LETTER BY POST SENT BY THE ADVOCATE ON 23.9.2016 INTIMATING T HE WITHDRAWAL OF VAKALAT GIVEN. IT MAY KINDLY BE SEEN FROM THE PETITION OF THE ADVOCATE SUBMITTED BEFORE THE HON'BLE ITAT THAT THE NON - COMPLIANCE TO THE DIRECTIONS OF THE HON'BLE ITAT WAS DUE TO THE REASON THAT THE DIRECTION WAS NOT COMMUNICATED TO THE PET ITIONER. THEREAFTER THE PETITIONER APPROACHED THE ADVOCATE WHEN IT WAS INFORMED ABOUT THE DISMISSAL OF APPEAL BY THE HON'BLE ITAT. THE PETITIONER HUMBLY SUBMITS THAT HE ALREADY GATHERED THE INFORMATION REQUIRED FOR REPRESENTING THE MATTER BEFORE THE HON'B LE ITAT AND THE SAME WAS SUBMITTED BEFORE THE HON'BLE ITAT IN THE FORM OF A PAPER BOOK. THE PETITIONER FURTHER SUBMITS THAT HE COULD NOT COMPLY WITH THE REQUIREMENT OF FILING THE MEDICAL CERTIFICATE BEFORE THE HON'BLE ITAT AS HE WAS NOT IN THE KNOWLEDGE OF THE MATTER AND IT WAS KNOWN TO HIM AFTER THE HON'BLE ITAT DISPOSED OF THE APPEAL. THE PETITIONER HUMBLY SUBMITS THAT HE WOULD BE PUT TO IRREPARABLE DAMAGE AS THE ASSESSING OFFICER IS INSISTING FOR PAYMENT OF HUGE DEMAND ARISING OUT OF LTCG ON SALE OF AGRI CULTURAL LAND WHICH IS EXEMPT FROM TAX. THE PETITIONER, THEREFORE, PRAYS THE HON'BLE ITAT TO KINDLY RECALL THE ORDER OF THE ITAT IN ITA NO. 963/HYD/2013 DATED 22.9.2016 AND PASS APPRO PRIATE ORDERS IN THE MATTER. 2. LEARNED COUNSEL FOR THE ASSESSEE SUBMITT ED THAT THE ASSESSEE HAD NOT RECEIVED THE NOTICE OF WITHDRAWAL BY VAKALAT ON 22.09.2016 TILL 29.09.2016 AND THEREFORE, THE ASSESSEES APPEALS GOT DISMISSED FOR 3 DEFAULT ON 22.09.2016. HE SUBMITTED THAT THE ASSESSEE HAD ENGAGED THE ADVOCATE THROUGH MR. O.S. S. PRASAD AND THE MAIL SENT BY THE ADVOCATE WAS ALSO T O MR. O.S.S. PRASAD. THEREFORE, ACCORDING TO THE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE WAS NOT AWARE OF THE REQUIREMENT OF THE ASSESSEE TO PRODUCE THE MEDICAL CERTIFICATE AND THE TIME GRANTED FOR THE SAID PURPOSE TILL 21.09.2016. THUS, H E PRAYED FOR RECALL OF THE ORDER OF THE TRIBUNAL. 3. LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, SUBMITTED THAT THE ASSESSEE HAD SUBMITTED A MEDICAL CERTIFICATE EXPLAINING THE DELAY AND ON AN ENQUI RY MADE BY THE OFFICER, DEPARTMENTAL OFFICIALS FOUND THAT THE MEDICAL CERTIFICATE , ALLEGEDLY ISSUED BY THE HOSPITAL , IS NOT GENUINE. HE THEREFORE SUBMITTED THAT THE DELAY CANNOT BE CONDONED AND PRAYED THAT THE ORDER OF THE TRIBUNAL MAY NOT BE RECALLED. 4. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE MATERIAL ON RECORD, WE FIND THAT THE ISSUE OF CONDONATION OF DELAY IN THE APPEAL CAN BE CONSIDERED ONLY WHEN THE APPEAL IS BEING CONSIDERED FOR ADMISSION. AT TH E STAGE OF CONSIDERING THE APPEAL U/S 254(2) , THE ONLY CONSIDERATION IS WHETHER THE ASSESSEE IS PREVENTED BY A REASONABLE CAUSE FOR NON - APPEARANCE ON THE DATE OF HEARING I.E., 22.09.2016. AS SEEN FROM THE GMAIL SENT BY THE ADVOCATE TO MR. O.S.S. PRASAD, THE MAIL WAS ABOUT THE HEARING OF THE CASE O F THE ASSESSEE. THEREFORE, IT CAN BE SEEN THAT THE ASSESSEE WAS NOT DIRECTLY INTIMATED ABOUT THE LAST OPPORTUNITY GIVEN TO HIM FOR FILING OF THE MEDICAL CERTIFICATE AND IMMEDIATELY THE NEXT DAY I.E., ON 22.09.2016 , THE APPEAL WAS DISMISSED. THEREFORE, WE ARE CONVINCED THAT THE ASSESSEE WAS PREVENTED BY A REASONABLE CAUSE FOR NON - APPEARANCE AND NON - COMPLIANCE OF THE DIRECTIONS OF THE BENCH ON 22.09.2016. THE APPEAL IS ACCORDINGLY RECALLED AND POSTED FOR HEARING 4 ON 19.12.2018. THE ISSUE OF CONDONATION OF DELAY AND THE GENUINENESS OF THE MEDICAL CERTIFICATE FILED BY THE ASSESSEE FOR SUCH CONDONATION OF DELAY SHALL BE CONSIDERED WHEN THE APPEAL IS HEARD ON MERITS. ACCORDINGLY, MISCELLANEOUS APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH AUGUST , 2018 . S D/ - SD/ - ( S. RIFAUR RAHMAN) ( SMT. P. MADHAVI DEVI ) ACOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED: 10 TH AUGUST , 2018. OKK, SR.PS COPY TO 1. MR. GIRIJALA SRINIVAS GOUD, 12 - 124, SRINIVAS NAGAR COLONY, RAMACHANDRAPURAM, MEDAK DISTRICT. C/O. A.V. RAGHU RAM, P.VINOD, ADVOCATES, FLAT NO.610, BABUKHAN ESTATE, BASHEERBAGH, HYDERABAD. 2. ACIT, CENTRAL CIRCLE - 1, HYDERABAD. 3. CIT(A) - 1, HYDERABAD. 4. PR. CIT - 1, HYDERABAD. 5. DR, ITAT, HYDERABAD. 6. GUARD FILE