P Rama Prasad, Hyd, Hyderabad V. ITO, Ward-13(3), Hyd, Hyderabad

MA 24/HYD/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5704 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 27-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N SWAPNA
• Assessee Lawyers: P MURALI MOHAN RAO
• Keywords: Reopening of assessment; Assessment record; Reassessment proceedings
• Section: 148

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. 24/HYD/2017 (IN ITA NO. 495/HYD/2016 ASSESSMENT YEAR: 2010-11 ) P. RAMA PRASAD, HYDERABAD PAN- AGMPP 8790J VS. INCOME-TAX OFFICER, WARD 13(3), HYDERABAD (APPLICANT) (RESPONDENT) ASSESSEE BY : SHRI P. MURALI MOHAN RAO REVENUE BY : SMT. N. SWAPNA DATE OF HEARING : 07/07/2017 DATE OF PRONOUNCEMENT : 14/07/2017 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 ITA NO. 495/HYD/2016 DATED 28/1 0/2016. 2. IT IS THE CASE OF THE ASSESSEE THAT REOPENING OF THE ASSESSMENT IS BAD IN LAW AS THE ASSESSEE HAS NOT BEEN SUPPLIED WI TH THE REASONS FOR REOPENING OF ASSESSMENT IN SPITE OF SPECIFIC REQUES T MADE BY THE ASSESSEE. IT IS ALSO THE CASE OF THE ASSESSEE THAT REASONS FOR REOPENING HAVE NOT BEEN SUPPLIED EVEN TILL DATE. 3. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSESSEE HAS RELIED UPON VARIOUS JUDICIAL PRECEDENTS WHEREIN IT HAS BEE N HELD THAT IF THE 2 M.A. NO. 24/HYD/2017 P. RAMA PRASAD, HYD. REASONS FOR REOPENING THE ASSESSMENT ARE NOT PROVID ED DURING THE ASSESSMENT PROCEEDINGS, EVEN SPECIFIC REQUEST BY TH E ASSESSEE, REASSESSMENT PROCEEDINGS ITSELF VOID AB-INITIO. FOR THIS PROPOSITION, LD. COUNSEL FOR THE ASSESSEE REFERRED TO THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF N. SURYA PRAKASH RAO (ITA NO. 300/HYD/2013). LD. COUNSEL FOR THE ASSESSEE HAD PLA CED RELIANCE UPON ALL THESE DECISIONS AT THE TIME OF HEARING OF APPEAL, B UT, BY MISTAKE THE TRIBUNAL HAS REFERRED ONLY TO THE DECISION OF HONB LE SUPREME COURT IN THE CASE OF GKN DRIVE SHAFT (INDIA) LTD., VS. ITO, [200 2] 259 ITR 19 (SC) HAS REMITTED THE MATTER BACK TO THE FILE OF THE AO WITH A DIRECTION TO RE-DO THE ASSESSMENT AFTER SUPPLYING THE REASONS RECORDED FO R REOPENING OF THE ASSESSMENT U/S 148 OF THE ACT. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TRIBUNAL OUGHT TO HAVE FOLLOWED THE JUDICIAL PR ECEDENTS ON THE ISSUE AND BY REMITTING THE ISSUE TO THE FILE OF THE AO, T HE REVENUE IS BEING GIVEN ANOTHER CHANCE AND THE ASSESSEE IS BEING PENALIZED. THEREFORE, ACCORDING TO THE LD. COUNSEL FOR THE ASSESSEE, THERE IS A MIS TAKE APPARENT FROM RECORD BY NOT FOLLOWING THE DECISIONS OF THE COORDI NATE BENCH. 4. LD. DR, ON THE OTHER HAND, SUPPORTED THE ORDER O F THE TRIBUNAL AND SUBMITTED THAT THERE IS NO ERROR APPARENT FROM RECO RD AND THE ASSESSEE IS SEEKING REVIEW OF THE ORDER OF THE TRIBUNAL, WHICH IS NOT PERMISSIBLE U/S 254(2) OF THE ACT. 5. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE M ATERIAL ON RECORD, WE FIND THAT THE COORDINATE BENCH OF THE TRIBUNAL IN T HE CASE OF N. SURYA PRAKASH RAO (SUPRA) HAD PERUSED THE ASSESSMENT RECO RDS OF THAT CASE TO GIVE FINDING THAT ASSESSEES REQUEST FOR REASONS FO R REOPENING HAVING BEEN CONSIDERED AND THE REASONS HAVE NOT BEEN SUPPLIED T O THE ASSESSEE BEFORE COMPLETION OF THE ASSESSMENT AND IN VIEW OF THE SAM E, ASSESSMENT WAS HELD TO BE VOID. IN THE CASE BEFORE US, WE FIND THA T THE CIT(A) HAS OBSERVED THAT ASSESSEE HAS RAISED A SPECIFIC GROUND BEFORE T HE CIT(A) AND THE CIT(A) HAS OBSERVED THAT ASSESSEE WAS IN RECEIPT O F NOTICE U/S 148 AND HAD ALSO APPEARED BEFORE THE AO NUMBER OF TIMES AND THEREFORE, HE PRESUMED THAT THE REASONS HAVE BEEN SUPPLIED TO THE ASSESSEE. THE TRIBUNAL HAD SIMPLY REMITTED THE FILE TO THE AO WIT H A DIRECTION TO SUPPLY THE REASONS AND COMPLETE THE ASSESSMENT IN ACCORDANCE W ITH LAW AFTER CONSIDERING THE OBJECTIONS OF THE ASSESSEE, IF ANY. TAKING INTO 3 M.A. NO. 24/HYD/2017 P. RAMA PRASAD, HYD. CONSIDERATION THE JUDICIAL PRECEDENTS, PARTICULARLY THE FINDING OF THE CIT(A), WE ARE OF THE OPINION THAT THE MATTER NEEDS RECONSI DERATION AFTER VERIFYING THE ASSESSMENT RECORD, PARTICULARLY, IN THE LIGHT O F THE FINDING OF THE CIT(A). IN VIEW OF THE SAME, WE DEEM IT FIT AND PROPER TO R ECALL THE ORDER OF THE TRIBUNAL 28/10/2016 AND DIRECT THE REGISTRY TO RE-F IX THE APPEAL FOR HEARING AS PART HEARD ON 16/08/2017. LD. DR IS DIRECTED TO PROVIDE ASSESSMENT RECORD FOR THE PERUSAL OF THE BENCH ON 16/08/2017 F OR EARLY DISPOSAL OF THE APPEAL. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED AS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT ON 14 TH JULY, 2017. SD/- SD/- (P. MADHAVI DEVI) (S. RIFAUR RAHM AN) JUDICIAL MEMBER A CCOUNTANT MEMBER HYDERABAD, DATED: 14 TH JULY, 2017. KV COPY TO:- 1) SRI P. RAMA PRASAD, C/O P. MURALI & CO., CAS., 6-3-655/2/3, 1 ST FLOOR, SOMAJIGUDA, HYDERABAD 500 082 2) ITO, WARD 13(3), HYD. 3) CIT - 4, HYDERABAD 4 PR. CIT 4, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDE RABAD. 6) GUARD FILE