Nawab Mir Barkat Ali Khan, Hyderabad V. DCIT., Circle-9(1), Hyderabad

MA 167/HYD/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6942 (ITAT-HYDERABAD)
• Duration Of Justice: 5 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-09-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 05-04-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T DIWAKAR PRASAD
• Assessee Lawyers: K C DEVADAS

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A , HYDERABAD BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI AKBER BASHA, ACCOUNTANT MEMBER MISC. APPLNS. NO.164 TO 170/HYD/2011 (IN ITA NO.326 TO 332/HYD/2007) (ASSESSMENT YEARS 1998-99 TO 2004-05) SHRI NAWAB MIR BARKAT ALI KHAN, HYDERABAD. ( PAN ADFPK 2166 B ) V/S. DY. COMMISSIONER OF INCOME - TAX, CIRCLE 9(1), HYDERABAD (APP LICANT ) (RESPONDENT) APPLICANT BY : SHRI K.C.DEVADAS RESPONDENT BY : SHRI T.DIWAKAR PRASAD DATE OF HEARING 23.9.2011 DATE OF PRONOUNCEMENT 23.9.2011 O R D E R PER AKBER BASHA, ACCOUNTANT MEMBER: BY THESE APPLICATIONS UNDER S.254(2) OF THE INCOM E-TAX ACT, 1961, THE APPLICANT-ASSESSEE SEEKS RECALL/RECT IFICATION OF THE COMMON ORDER OF THIS TRIBUNAL DATED 11 TH FEBRUARY, 2011 IN ITA NOS.326 TO 332/HYD/2007 FOR ASSESSMENT YEARS 1998-9 9 TO 2004-05, ON THE GROUND THAT CERTAIN MISTAKES APPARENT FROM R ECORD HAVE CREPT INTO THE SAME. 2. THE LEARNED COUNSEL FOR THE ASSESSEE, REITERATI NG THE AVERMENTS MADE IN THE PRESENT APPLICATIONS, SUBMITT ED THAT THE COMMON GROUNDS INVOLVED IN THE APPEALS OF THE ASSES SEE RELATE TO VALIDITY OF RE-OPENING OF THE ASSESSMENTS UNDER S.1 47 OF THE ACT FOR THE ASSESSMENT YEARS 1998-99 TO 2004-05; ASSESSMEN T OF PROPERTY INCOME AT RS.50 LAKHS, RS.50 LAKHS; RS. 60 LAKHS; RS.70 LAKHS; RS. 80 LAKHS; RS.90 LAKHS AND RS.100 LAKHS RESPECTIVELY FOR THE M.A. NO.164 TO 170/HYD/2011 (IN ITA. NOS.326 TO 332/HYD/10) SHRI NAWAB MIR BARKAT ALI KHAN, HYDERABAD. 2 ASSESSMENT YEARS 1998-99 TO 2003-04; AND DENIAL OF LIABILITY FOR THE INTEREST UNDER S.234B OF THE ACT. HE SUBMITTED T HAT DURING THE COURSE OF HEARING ON 17.1.2011 THE DEPARTMENT PLACE D BEFORE THE TRIBUNAL THE REASONS FOR REOPENING OF THE ASSESSMEN TS WHICH RELATES TO TRANSACTIONS WITH IHC HOTELS LTD. AND AGREEMENTS IN RELATION THERETO FURNISHED BY THE IHC HOTELS ON 25.2.2005. S INCE THE AFORESAID REASONS FOR REOPENING THE ASSESSMENT WERE RECORDED ON27.1.2005. IT WAS SUBMITTED THAT THE REASONS RECORDED WERE ANT ERIOR TO THE INFORMATION OBTAINED FROM IHC LTD. AND THEREFORE, T HE SAME WERE NOT VALID. WHILE PASSING ITS ORDER DATED 11.2.2011, THE TRIBUNAL HAS NOT CONSIDERED THESE SUBMISSIONS OF THE ASSESSEE. EVE N ON MERITS, HE SUBMITTED THAT THE TRIBUNAL HAS NOT PROPERLY BROUGH T OUT THE FACTS OF THE CASE ON RECORD AND THE ORDER OF THE TRIBUNAL DA TED 11.2.2011 ALSO SUFFERS FROM NON-CONSIDERATION OF STATUTORY PROVISI ONS. EVEN ON THE ASPECT OF LEVY OF INTEREST UNDER S.234B OF THE ACT, THE TRIBUNAL HAS NOT ADJUDICATED UPON THE CONTENTIONS URGED BY THE L EARNED COUNSEL FOR THE ASSESSEE BEFORE IT, DENYING THE VERY LIAHBI L8TY TO INTEREST UNDER S.234B OF THE ACT. IN THE CIRCUMSTANCES, HE SUBMITTED THAT THE ORDER OF THE TRIBUNAL DATED 11.2.2011 SUFFERS FROM MISTAKES APPARENT FROM RECORD, AND AS SUCH, IT NEEDS RECTIFIED OR REC ALLED. 3. LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHE R HAND, OPPOSED THE ABOVE CONTENTIONS OF THE ASSESSEE, AND SUBMITTED THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORD ER OF THE TRIBUNAL DATED 11.2.2011. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS IN THE LIGHT OF THE ORDER OF THIS TRIBUNAL DATED 11.2.2011 AND THE AVERMENTS MADE IN THE PRESENT APPLICATIONS OF THE ASSESSEE. INSOF AR AS THE ISSUE M.A. NO.164 TO 170/HYD/2011 (IN ITA. NOS.326 TO 332/HYD/10) SHRI NAWAB MIR BARKAT ALI KHAN, HYDERABAD. 3 RELATING TO REOPENING OF THE ASSESSMENT AND THE MER ITS OF THE ISSUE RELATING TO ASSESSMENT OF PROPERTY INCOME FOR THE Y EARS UNDER CONSIDERATION, WE FIND THAT THERE IS NO SPECIFIC MI STAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL AND ALL THAT TH E ASSESSEE IS SEEKING THROUGH THE PRESENT APPLICATIONS IS A MERE REVIEW O F THE ORDER OF THE TRIBUNAL DATED 11.2.2011. SINCE SUCH A REVIEW IS NO T POSSIBLE IN THESE PROCEEDINGS UNDER S.254(2) OF THE ACT, THE SCOPE OF WHICH IS CONFINED TO MERE RECTIFICATION OF THE MISTAKES APPARENT FROM RECORD, WE FIND NO MERIT IN THE CONTENTIONS OF THE ASSESSEE IN PRESENT APPLICATIONS IN RELATION TO THESE ISSUES. THEY ARE ACCORDINGLY REJE CTED. AS FOR THE CHARGING OF INTEREST UNDER S.234B IS CONCERNED, WE AGREE WITH THE LEARNED COUNSEL OR THE ASSESSEE THAT THE TRIBUNAL H AS NOT CONSIDERED THE CONTENTION OF THE ASSESSEE DENYING THE VERY LIA BILITY TO INTEREST UNDER S.234B FO THE ACT, AND HAS PROCEEDED BY MEREL Y OBSERVING THAT SUCH INTEREST IS CONSEQUENTIAL, AND AS SUCH THERE I S A MISTAKE APPARENT FROM RECORD ON THIS ASPECT. IN THIS VIEW OF THE MATTER, WE RECALL OUR ORDER ONLY IN RELATION TO CHARGING OF IN TEREST UNDER S.234B OF THE ACT, AND DIRECT THE REGISTRY TO POST THE APP EALS OF THE ASSESSEE FOR THE LIMITED PURPOSE OF HEARING AND DISPOSAL OF THE ISSUE RELATING TO CHARGING OF INTEREST UNDER S.234B OF THE ACT. 5. IN THE RESULT, MISCELLANEOUS APPLICATIONS OF T HE ASSESSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 23.9. 2011 SD/- SD/- (G.C.GUPTA) (AKBER BASHA) VICE PRESIDENT ACCOUNTANT MEMBER DT/- 23RD SEPTEMBER, 2011 M.A. NO.164 TO 170/HYD/2011 (IN ITA. NOS.326 TO 332/HYD/10) SHRI NAWAB MIR BARKAT ALI KHAN, HYDERABAD. 4 COPY FORWARDED TO: 1. SHRI NAWAB MIR BARKAT ALI KHAN, C/O. M/S. SEKHAR & CO., C.A.S, 133/4, R.P.ROAD, SECUNDERABAD. 2. DY. COMMISSIONER OF INCOME-TAX CIRCLE 9(1), HYDE RABAD 3. COMMISSIONER OF INCOME - TAX(APPEALS) - V I HYDERABAD 4. COMMISSIONER OF INCOME - TAX V, HYDERABAD 5. THE DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S