Income Tax Officer, Ward-2(2), Vijayawada V. Kosanam Pushpavathi, Vijayawada

MA 28/VIZ/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3185 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-03-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 03-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: B RAMA KRISHNA
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER& SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER M . A .NO. 17/VIZ/2019 AND 2 8 /VIZ/201 9 (ARISING OUT OF I.T.A NO. 16 2 /VIZ/201 8 ) ( / A SSESSMENT Y EAR : 20 1 0 - 1 1 ) IN COME TAX OFFICER WARD - 2 (2) VIJAYAWADA ( / APPELLANT) VS. SMT.KOSANAM PUSHPAVATHI D.NO.41 - 24 - 2 GANGANAMMA TEMPLE ST. BRAHMARAMBAPURAM KRISHNA LANKA VIJAYAWADA [PAN :AKGPK3375G] ( / RESPONDENT) / APPELLANT BY : SHRI G.V.N.HARI, AR / RESPONDENT BY : SHRI B.RAMA KRISHNA, DR / DATE OF HEARING : 0 6 .0 3 .2020 / DATE OF PRONOUNCEMENT : 06 .0 3 . 20 20 / O R D E R P ER SHRI D.S.SUNDER SINGH, ACCOUNTANT MEMBER : IN THE INSTANT CASE, THE REVENUE HAS FILED APPEALS AGAINST THE ORDER OF THE INCOME TAX APPELLATE TRIBUNAL (ITAT) IN ORDER NO.162/VIZ/2018 DATED 03.01.2019 FOR THE ASSESSMENT YEAR (A.Y.) 2010 - 11. 2 M .A. NO . 1 7 /VIZ/201 9 AND 28/VIZ/2019 , A.Y.20 1 0 - 1 1 SMT. KOSANAM PUSHPAVATHI, VIJAYAWADA 2. THE DEPARTMENT BY MISTAKE HAS FILED TWO MISCELLANEOUS APPLICATIONS ON THE SAME ISSUE FOR THE A.Y.2010 - 11 AND THE ITAT HAS GIVEN TWO DIFFERENT NUMBERS I.E MA NO.17/VIZ/2019 AND 28/VIZ/2019. THEREFORE, THE REVENUE HAS WITHDRAWN THE MISCELLANEOUS APPLICATION FILED IN M.A. NO.17/VIZ/2019 ACCORDINGLY, THE MISCELLANEOUS APPLICATION FILED IN M.A.NO.17/VIZ/2019 IS DISMISSED AS WITHDRAWN. M.A.NO.28/VIZ/2019, A.Y.2010 - 11 3. IN THE INSTANT CASE, THE DEPARTMENT HAS FILED APPEAL WHICH WAS DECIDED AS PER ORDER IN I.T.A. NO.162/VIZ/2018 DATED 03.01.2019. IN THE SAID ORDER, THE ITAT FOUND THAT THER E WAS DELAY OF 9 MONTHS IN SERVING THE ASSESSMENT ORDER AND THE DEMAND NOTICE TO THE ASSESSEE AND THE DEPARTMENT DID NOT PLACE ANY EVIDENCE TO SHOW THAT THE ORDER WAS PASSED ON 04.03.2013 AND NO REASON WAS EXPLAINED BY THE LD.DR FOR SERVING THE ASSESSMENT ORDER AFTER 9 MONTHS, HENCE, HELD THAT THE ORDER PASSED U/S 143(3) WAS BARRED BY LIMITATION AND ACCORDINGLY ANNULLED THE ASSESSMENT. THE ITAT HAS FOLLOWED THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF STATE OF ANDHRA PRADESH VS. KHETMAL PAREKH & M.R AMAKISHTAIAH AND CO., IN CIVIL APPEAL NO.491 OF 1977 AND 1014 OF 1977. 3 M .A. NO . 1 7 /VIZ/201 9 AND 28/VIZ/2019 , A.Y.20 1 0 - 1 1 SMT. KOSANAM PUSHPAVATHI, VIJAYAWADA 4. AGAINST WHICH, THE DEPARTMENT HAS FILED MISCELLANEOUS APPLICATION STATING AS UNDER : 3. THE ABOVE ORDER WAS ALSO UPLOADED IN AST MODULE ON 30.03.2013 AS EVIDENCED BY THE PRINTOUT ENCLOSED. IT WAS ALSO DISPATCHED ON 14.03.2013 AS PER THE ENTRY DISPATCHED RECORDED BY THE THEN TAX ASSISTANT. 5. AFTER UPLOADING THE SAME, AS ABOVE, THE DEMAND NOTICE ETC., WERE SERVED ALSO MANUALLY ON 05.12.2013 AND TAKING THIS DATE AS THE BASIS, THE ASSESSEE AND HIS AR BEFORE THE HONBLE ITAT MADE AN ALLEGATION THAT THE ABOVE ASSESSMENT ORDER WAS ANTE DATED, WITHOUT MAKING REFERENCE TO THE EXACT DT.04.03.2013. 6. WHEN SUCH IS THE FACTUAL POSITION ESTABLISHED BY DOCUMENTARY EVIDENCE, THE ASSESSEE AND HIS AR TOOK THE STAND THAT THE ASSESSMENT ORDER, WAS ANTE - DATED WHICH IS HIGHLY UNTENABLE. IT PRIMA - FACIE APPEARS THAT BOTH OF THEM MISREPRESENTED THE FACTUAL POSITION BEFORE THE HONBLE ITAT. T HE DEPARTMENT HAS REQUESTED TO RECALL THE ORDER AND READJU DICATE THE ISSUE. DURING THE HEARING THE LD.DR REITERATED THE SAME SUBMISSIONS WHICH WERE MENTIONED IN M.A. AND ARGUED THAT THE ORDER WAS PASSED WITHIN THE TIME ALLOWED UNDER THE ACT, HENCE REQUESTED TO RECALL THE ORDER. NO REASONS WERE GIVEN BY THE AO FOR SERVING THE ORDER AFTER NINE MONTHS. THE LD.DR ALSO FAILED TO EXPLAIN THE REASONS FOR SUCH INORDINATE DELAY IN SERVING THE ORDER. 6. ON THE OTHER HAND, THE LD.AR STRONGLY OBJECTED FOR RECALLING THE ORDER STATING THAT THERE WAS NO MISTAKE IN THE ORDER OF THE ITAT AND SUBMITTED THAT THE ASSESSMENT ORDER WAS SERVED TO THE ASSESSEE ON 05.12.2013 I.E. 4 M .A. NO . 1 7 /VIZ/201 9 AND 28/VIZ/2019 , A.Y.20 1 0 - 1 1 SMT. KOSANAM PUSHPAVATHI, VIJAYAWADA AFTER 9 MONTHS, HENCE, ARGUED THAT THE ITAT HAS RIGHTLY HELD THAT THE ASSESSMENT AS INVALID. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDER OF THE IT AT AND THE MATERIAL PLACED BEFORE US. DURING THE APPEAL HEARING NO MATERIAL WAS PLACED BEFORE US TO ESTABLISH THAT THE ORDER WAS PASSED ON 30.03.2013, IN SPITE OF GIVING OPPORTUNITY TO THE DEPARTMENT. THE DEPARTMENT ALSO DID NOT EXPLAIN THE REASONS FOR INO RDINATE DELAY IN SERVING THE ORDER. THE ITAT HAS PASSED THE ORDER AFTER CONSIDERING THE SUBMISSIONS MADE BY THE LD.DR AND THE AR AND ALSO CONSIDERED THE DECISIONS OF VARIOUS JUDICIAL FORUMS INCLUDING THE DECISION OF HONBLE APEX COURT. THEREF ORE, WE FIND NO MISTAKE IN THE ORDER PASSED BY THE ITAT, HENCE, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. 8. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. 5 M .A. NO . 1 7 /VIZ/201 9 AND 28/VIZ/2019 , A.Y.20 1 0 - 1 1 SMT. KOSANAM PUSHPAVATHI, VIJAYAWADA ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH MARCH, 2020. S D/ - S D/ - ( . ) ( . . ) (V. DURGA RAO) ( D.S. SUNDER SINGH ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM /DATED : 06 . 0 3 .20 20 L.RAMA, SPS / COPY OF THE ORDER FORWARDED TO: - 1. / THE ASSESSEE - SMT.KOSANAM PUSHPAVATHI, D.NO.41 - 24 - 2, GANGANAMMA TEMPLE ST., BRAHMARAMBAPURAM, KRISHNA LANKA, VIJAYAWADA 2 . / THE REVENUE IN COME TAX OFFICER, WARD - 2 (2), VIJAYAWADA 3. / THE PR. COMMISSIONER OF INCOME TAX , VIJAYAWADA 4. ( ) / THE COMMISSIONER OF INCOME - TAX (APPEALS), VIJAYAWADA 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM