Syed Abbas Miah, Kurnool V. ITO, Ward-1, Kurnool, Kurnool

MA 2/Hyd/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6211 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 29-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D PRASADA RAO
• Assessee Lawyers: S RAMA RAO
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Assessment record
• Section: 142(1); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SMT P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER M.A. NO. 02/HYD/2018 (IN ITA NO. 1049/HYD/2016 ASSESSMENT YEAR: 2011-12 ) SYED ABBAS MIAH, KURNOOL. PAN AVXPS 6081 K VS. INCOME-TAX OFFICER, WARD 1, KURNOOL (APPLICANT) (RESPONDENT) ASSESSEE BY : SHRI S. RAMA RAO REVENUE BY : SHRI D. PRASADA RAO DATE OF HEARING : 16 /0 2 /201 8 DATE OF PRONOUNCEMENT : 16/03/2018 O R D E R PER S. RIFAUR RAHMAN, A.M.: THIS MISCELLANEOUS APPLICATION IS FILED BY THE AS SESSEE U/S 254(2) OF THE ACT SEEKING RECTIFICATION OF ALLEGED MISTAKE IN THE ORDER OF THE TRIBUNAL PASSED IN I.T.A. NO. 1049/HYD/2016 AND C. O. NO. 56/HYD/2016, DATED 02/06/2017. 2. IN THE M.A., THE ASSESSEE SUBMITTED AS UNDER: THE PETITIONER FILED ALL THE DETAILS BEFORE THE LEA RNED COMMISSIONER OF INCOME-TAX (APPEALS). THE LEARNED COMMISSIONER O F INCOME-TAX (APPEALS) IS OF THE VIEW THAT THE SAID INFORMATION WAS FILED BEFORE THE ASSESSING OFFICER AND THAT, THEREFORE, A DECISION C AN BE TAKEN WITHOUT REFERENCE TO RULE 46A OF THE INCOME-TAX RUL ES. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ACCORDINGLY, V ERIFIED THE INFORMATION SUBMITTED BY THE PETITIONER AND ALLOWED THE APPEAL FILED. THE ENTIRE ADDITIONS MADE U/S 68 OF THE INCOME-TAX ACT OF RS.1,51,98,000/- AND RS.1,53,58,000/- ARE DELETED B Y THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS). 2 M.A. NO. 02/HYD/2018 SYED ABBAS MIAH THE REVENUE IN THE APPEAL FILED DID NOT RAISE ANY G ROUND THAT THE INFORMATION WAS NOT BEFORE THE ASSESSING OFFICER. H OWEVER, DURING THE COURSE OF HEARING, THE LEARNED DR ARGUED THAT T HE INFORMATION WAS NOT AVAILABLE WITH THE ASSESSING OFFICER AND TH AT, THEREFORE, THE PROVISIONS OF RULE 46A WAS NOT PROPERLY APPLIED BY THE COMMISSIONER OF INCOME-TAX (APPEALS). THE HON'BLE ITAT ACCEPTED THE CONTENTIONS AND ALLOW ED THE APPEAL FILED BY THE REVENUE. IT IS SUBMITTED THAT IN THE C IRCUMSTANCES OF THE CASE, THE HON'BLE TRIBUNAL OUGHT TO HAVE SET ASIDE THE MATTER TO THE FILE OF THE COMMISSIONER OF INCOME-TAX (APPEALS) FO R EXAMINING THE EVIDENCE SUBMITTED BY THE PETITIONER AFRESH. THE PETITIONER, THEREFORE, PRAYS THE HON'BLE ITAT T O KINDLY RECALL THE ORDER OF THE ITAT IN ITA NO.1049/HYD/2016 DATED 2.6 .2017 AND PASS APPROPRIATE ORDERS IN THE MATTER. 3. REFERRING TO THE ABOVE FACTUAL BACKGROUND, THE L D. AR OF THE ASSESSEE SUBMITTED THAT THE HONBLE TRIBUNAL OUGHT TO HAVE REMITTED THE MATTER TO THE FILE OF THE AO FOR EXAMINING THE EVID ENCE WHICH WAS SUBMITTED BY THE ASSESSEE FOR THE FIRST TIME BEFORE THE CIT(A ), INSTEAD, ALLOWED THE APPEAL OF THE REVENUE BY HOLDING THAT THE ORDER PAS SED BY THE CIT(A) IS IN GROSS VIOLATION OF THE PRINCIPLES OF NATURAL JUSTIC E AND HIS ORDER CANNOT BE SUSTAINED IN THE EYES OF LAW. THE LD. AR THEREFORE, SUBMITTED THAT THE BENCH MAY RECALL THE SAID ORDER AND PASS APPROPRIAT E ORDERS IN THE MATTER. 4. THE LD. DR, HOWEVER, RELIED ON THE ORDER OF ITAT . 5. CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE TRIBUNAL HAS ALLOWED THE A PPEAL OF THE REVENUE BY OBSERVING AS UNDER: 6. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL ON RECORD. IN THE PRESENT CASE, THE AO MADE A CATEGORI CAL STATEMENT IN THE ASSESSMENT ORDER THAT THE RESPONDENT ASSESSEE H AD NOT RESPONDED NOR COMPLIED WITH THE SEVERAL NOTICES ISS UED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. NOTHING IS DISCER NIBLE FROM THE ASSESSMENT RECORDS THAT THE RESPONDENT ASSESSEE HAD DULY RESPONDED OR COMPLIED WITH THE NOTICES ISSUED U/S 1 43(2) AND 142(1) OF THE ACT. IN THE ABSENCE OF ANY EVIDENCE CONTROVE RTING THE FINDINGS OF THE AO, THE CIT (A) OUGHT NOT TO HAVE OBSERVED T HAT THE ASSESSEE HAD COMPLIED WITH ALL THE NOTICES, HAD FILED THE RE QUISITE INFORMATION BEFORE THE AD. THE ORDER OF THE CIT (A) RESTS ON TH E PREMISE THAT AD HAD NOT UNDERTAKEN ANY VERIFICATION OF THE DETAILS FILED BEFORE HIM, HE SIMPLY BRUSHED ASIDE THE INFORMATION FILED BY THE R ESPONDENT ASSESSEE AND CONCLUDED AND COMPLETED THE ASSESSMENT BY MAKING THE ADDITION ON ACCOUNT OF CASH DEPOSITS MADE IN TH E BANK ACCOUNTS 3 M.A. NO. 02/HYD/2018 SYED ABBAS MIAH TREATING AS UNREALISTIC AND TREATING THE SUNDRY CRE DITORS AS FICTITIOUS. THIS FINDING OF THE CIT(A) IS NOT BORNE OUT OF THE RECORD NOR BASED ON EVIDENCE ON RECORD. THE CIT (A) FAILED TO PASS A RE ASONED AND SPEAKING ORDER IN SUPPORT OF THE SOURCES ON THE CAS H DEPOSITS MADE OR TO SAY THAT THE SUNDRY CREDITORS ARE GENUINE. TH EREFORE, EVEN ASSUMING THAT THE RESPONDENT ASSESSEE HAD FILED ADD ITIONAL EVIDENCE BEFORE' THE CIT (A) IN SUPPORT OF THE SOURCES FOR C ASH DEPOSITS OR PROVING THE GENUINENESS OF THE SUNDRY CREDITORS, TH E LD. CIT(A) OUGHT TO HAVE GIVEN AN OPPORTUNITY OF REBUTTING THE SAME TO THE AO IN TERMS OF RULE 46A OF INCOME TAX RULES, 1962. THE PROVISIO NS OF RULE 46A ARE FRAMED ONLY IS PART OF THE PRINCIPLES OF NATURA L JUSTICE, EVEN IN THE ABSENCE OF RULE 46A; KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, THE CIT (A) IS DUTY BOUND TO AFFORD AN OPP ORTUNITY OF REBUTTING THE ADDITIONAL EVIDENCE TO THE AO. THE CIT (A) OUGH T TO HAVE AFFORDED BOTH AN OPPORTUNITY TO OPPOSE IT AND TO TE ST THE ADDITIONAL EVIDENCE OR PRODUCE EVIDENCE IN REBUTTAL. THEREFORE , THESE FACTS GOES TO PROVE THAT THE ORDER PASSED BY THE CIT (A) IS IN GROSS VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND THIS ORDER CANNOT BE SUSTAINED IN THE EYES OF LAW. HENCE, THIS ORDER OF THE CIT [APPEALS) CANNOT BE SUSTAINED. FROM THE ABOVE FINDINGS OF THE COORDINATE BENCH, IT IS CLEAR THAT THE BENCH HAS ACCEPTED THE SUBMISSIONS OF THE REVENUE THAT AO WAS NOT GIVEN PROPER OPPORTUNITY UNDER RULE 46A. THEREFORE, INADVERTENTL Y, THE BENCH HAS ALLOWED THE APPEAL OF THE REVENUE INSTEAD OF REMITT ING THIS CASE BACK TO THE FILE OF THE AO. THEREFORE, WE ARE OF THE VIEW THAT, TO MEET THE ENDS OF JUSTICE, THE MATTER HAS TO BE SENT BACK TO THE FIL E OF THE AO. THE ORDER OF THE TRIBUNAL IS THEREFORE RECTIFIED BY REPLACING TH E LAST FOUR LINES IN PARAGRAPHS 6 & PARAGRAPH 7 IN THE ORDER, AS UNDER: 6. AO IS DIRECTED TO DECIDE THE APPEAL AFTER EXAM INING THE EVIDENCES FILED BY THE ASSESSEE BEFORE THE CIT(A) A ND DECIDE THE ISSUES AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDIN G AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE M ATTER. 7. IN THE RESULT, REVENUES APPEAL IS ALLOWED FOR S TATISTICAL PURPOSES. 4. IN THE RESULT, M.A. FILED BY THE ASSESSEE IS AL LOWED. PRONOUNCED IN THE OPEN COURT ON 16 TH MARCH, 2018 SD/- SD/- (P. MADHAVI DEVI) (S. RIFAUR RAH MAN) JUDICIAL MEMBER A CCOUNTANT MEMBER HYDERABAD, DATED: 16 TH MARCH, 2018. 4 M.A. NO. 02/HYD/2018 SYED ABBAS MIAH KV COPY TO:- 1) SRI SYED ABBAS MIAH, 40-310-1, 2 ND FLOOR, BELLARY ROAD, OPP. BALAJI HOTEL, KURNOOL.. 2) ITO, WARD 1, O/O ADDL. CIT, AAYAKAR BHAVAN, OP P. CHILDREN PARK N/R. PETA, KURNOOL. 3) CIT(A), KURNOOL 4 PR. CIT, KURNOOL 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDE RABAD. 6) GUARD FILE