ACIT, Circle - 10(1), Hyderabad V. M/s Sri Venkat Sai Laxmi Estates, Hyderabad

MA 257/HYD/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6010 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-01-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 31-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P M S KAMA RAJU
• Assessee Lawyers: K V N CHARYA
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A , HYDERABAD BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI CHANDRA POOJARI ACCOUNTANT MEMBER MA NO.257/H/2010 ARISING OUT OF ITA NO.927/H/2010 ASSESSMENT YEAR 2007-2008 M/S SRI VENKATA SAI LAXMI ESTATES, HYDERABAD (PAN ABJFS 8150 R) VS THE ACIT, CIRCLE 10(1), HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P.M.S. KAMA RAJU RESPONDENT BY : SHRI K.V.N. CHARYA O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS MISCELLANEOUS APPLICATION FILED BY THE ASSE SSEE SEEKING THE RECALL OF THE ORDER OF THIS TRIBUNAL IN ITA NO. 927 /HYD/2010 DATED 7.10.2010 AND PERTAINS TO THE ASSESSMENT YEAR 2007- 08. 2. THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THIS TRIBUNAL HAS SET ASIDE THE ISSU E INVOLVED IN THE REVENUE APPEAL TO THE FILE OF CIT(A) WITH THE FOLLO WING DIRECTIONS: 4. THE MAIN GRIEVANCE IN REVENUE APPEAL IS THAT TH E CIT(A) OUGHT TO HAVE APPRECIATED THAT THE AMOUNT OF RS.5.87 CRORE R ECEIVED FROM M/S SUCHIR INDIA IS TAXABLE IN ASSESSMENT YEAR 2007-08 AND CIT(A) OUGHT NOT TO HAVE HELD THAT THE ABOVE SUM REPRESENTS ADVA NCE TOWARDS DEVELOPMENT WORK. THE ASSESSEE HAS FILED RETURN O F INCOME OF THE PARTNERS BEFORE THE CIT(A) WHICH WAS NOT PUT BEFORE THE ASSESSING OFFICER BEFORE PASSING THE APPELLATE ORDER BY THE CIT(A), HENCE, THIS IS AGAINST THE PRINCIPLES OF OF NATURAL JUSTICE. AS S UCH, WE ARE ACCEDE TO THE REQUEST OF THE LEARNED DEPARTMENTAL REPRESENTAT IVE. ACCORDINGLY, THE ISSUES INVOLVED IN THIS APPEAL IS SET ASIDE TO THE FILE OF CIT(A) TO DECIDE AFRESH AFTER CONFRONTING THE EVIDENCE FILED BEFORE THE CIT(A) TO THE ASSESSING OFFICER AND CALLING HIS REMAND REPORT . AT THIS STAGE, WE ARE REFRAINED FROM GOING INTO THE OTHER GROUNDS OF THE APPEAL. MA NO.257/H/2010 (ITA 927/H/2010) M/S VENKATA SAI LAXMI ESTATES, HYD. 2 2 3. ACCORDING TO THE LEARNED AUTHORISED REPRESENT ATIVE FOR THE ASSESSEE, SETTING ASIDE THE ISSUE TO THE FILE OF CI T(A) IS NOT JUSTIFIED SINCE THE REVENUE DID NOT RISE ANY ISSUE OF FRESH EVIDENC E PRODUCED BEFORE THE CIT(A). THEREFORE, SETTING ASIDE THE APPEAL IN THIS REGARD DOES NOT DESERVE ANY MERIT. AS SUCH, THE LEARNED AUTHORISED REPRES ENTATIVE FOR THE ASSESSEE PRAYED THE BENCH TO RESTORE THE APPEAL AND GIVE AN OPPORTUNITY OF BEING HEARD. WITHOUT PREJUDICE TO THE ABOVE, HE SUB MITTED THAT ON THE DATE OF HEARING, THE ASSESSEES COUNSEL COULD NOT APPEA R BEFORE THE TRIBUNAL DUE TO ILL HEALTH AND PRAYED FOR ONE MORE OPPORTUNI TY OF HEARING. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMI TTED THAT THE ASSESSEE COULD NOT HAVE ANY GRIEVANCE AGAINST THE O RDER OF THIS TRIBUNAL, SINCE THE TRIBUNAL HAS SET ASIDE THE ISSUE TO THE F ILE OF CIT(A) TO GIVE AN OPPORTUNITY TO THE DEPARTMENT TO CONSIDER THE REMAN D REPORT FROM ASSESSING OFFICER. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. IN OUR OPINION, THE ASSESSEE COULD NOT HAVE ANY GRIEVANCE AGAINST THE ORDER OF THE TRIBUNAL. THE T RIBUNAL HAS SET ASIDE THE ISSUE TO THE FILE OF THE CIT(A) WITH A DIRECTION TO CONFRONT THE EVIDENCE FILED BEFORE THE CIT(A) TO THE ASSESSING OFFICER AND CALL ING HIS REMAND REPORT ON MERIT. THE TRIBUNAL HAS NOT GIVEN ANY FINDINGS ON MERIT OF THE ISSUE AS SUCH, THE ASSESSEE CAN PUT FORTH ITS CASE BEFORE TH E CIT(A). ACCORDINGLY, THE MA FILED BY THE ASSESSEE STANDS DISMISSED. 7. IN THE RESULT, THE MA NO.257/H/2010 (IN ITA N O.927/H/2010) STANDS DISMISSED. MA NO.257/H/2010 (ITA 927/H/2010) M/S VENKATA SAI LAXMI ESTATES, HYD. 3 3 ORDER PRONOUNCED IN THE OPEN COURT 21.1.2011 SD/- SD/- G.C. GUPTA CHANDRA POOJARI VICE PRESIDENT ACCOUNTANT MEMBER DATED THE 21 ST JANUARY, 2011 COPY FORWARDED TO: 1. M/S VENKATA SAI LAXMI ESTATES, F-19, JABBAR BUIL DINGS, BEGUMPET, HYDERABAD 2. THE ACIT CIRCLE 10(1), HYDERABAD 3. CIT(A)-VI HYDERABAD. 4. CIT, HYDERABAD 5. THE D.R., ITAT, HYDERABAD. NP