Assistant Commissioner of Income Tax, Central Circle-1, Rajahmundry V. Pattapagalu Venkata Rao, Rajahmundry

MA 4/VIZ/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4873 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 3 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-05-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 30-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHKRISESHA SRINIVASA
• Section: 143(3); 13; 153C; 132; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI N.K. CHOUDHRY, HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH, HON'BLE ACCOUNTANT MEMBER M .A. NO S . 03 & 04 /VIZ/2020 (ARISING OUT OF IT (SS) A NOS. 08 & 10/VIZ/2018) (ASST. YEAR : 2009 - 1 0 & 2013 - 14 ) ACIT, CENTRAL CIRCLE - 1, RAJAHMUNDRY. VS. PATTAPAGALU VENKATA RAO , D.NO. 79 - 21 - 3, MALLINA NAGAR, RAJAHMUNDRY. (APPELLANT) PAN NO. AGGP 6802 P (RESPONDENT) ASSESSEE BY : SHRI G.V.N. HARI, ADVOCATE. DEPARTMENT BY : SHKRISESHA SRINIVASA , SR. DR DATE OF HEARING : 05 / 0 5 /2021 . DATE OF PRONOUNCEMENT : 12 / 0 5 /2021 . O R D E R PER D.S. SUNDER SINGH , ACCOUNTANT MEMBER BY FILING THESE MISC.APPLICATIONS, REVENUE SEEKS TO RECALL OF THE ORDER DATED 17/07/2019 PASSED BY THIS TRIBUNAL IN IT(SS)A NOS . 08 & 10/VIZ/2018 FOR THE A.Y. 2009 - 10 & 2013 - 14 . SINCE THE FACTS AND ISSUES ARE COMMON, BOTH THE MISC.APPLICATIONS ARE CLUBBED AND HEARD TOGETHER AND DISPOSED OF BY WAY OF THIS CONSOLIDATED ORDER . 2 M A NO S . 03 & 04 / VIZ /2020 ( PATTAPAGALU VENKATA RAO ) 2. IN THIS CASE, THE ASSESSMENT WAS COMPLETED U/SEC. 153C R.W.S. 143(3) OF THE ACT BY AN ORDER DATED 23/10/2016. THE APPEAL TRAVELLED TO THE ITAT AND THE ITAT IN ITS ORDER DATED 17/07/2019 QUASH ED THE NOTICE ISSUED U/SEC. 153C WITHOUT HAVING ANY INCRIMINATING MATERIAL FOLLOWING THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. SINHGAD TECHNICAL EDUCATIONAL SOCIETY [(2017) 397 ITR 344 (SC)] AND THE DECISION OF THIS TRIBUNAL IN M/S. SRI BALAJI CONSTRUCTIONS , KAKINADA IN ITA NO.387/VIZ/2014, DATED 10/01/2018 . AGAINST THE ORDER PASSED BY THE ITAT, THE DEPARTMENT FILED THE PRESENT MISC.APPLICATIONS FOR THE A.YS. 2009 - 10 & 2013 - 14 . 3 . IN THE MISC.APPLICATION FILED FOR THE A.Y. 2009 - 10, THE AO STATED THAT THERE WAS SEIZED MATERIAL AS PER LOOSE SHEET NOS. 1 TO 18 OF ANNEXURE - PV/A/13 , ON THE BASIS OF WHICH THE NOTICE WAS ISSUED I N P ARA 2.3 OF THE MISC.APPLICATION , WE EXTRACT THE SAME AS UNDER: - 2.3 HOWEVER, INCRIMINATING MATERIAL WAS FOUND AND SEIZED AS PER LOOSE SHEET NOS. 1 TO 18 OF ANNEXURE PV/A/13 DURING THE SEARCH OPERATIONS FOR THE A.Y. 2009 - 10 BASED ON WHICH NOTICE U/SEC. 153C WAS ISSUED AND ASSESSEE HAS ADMITTED THE ADDITIONAL UNDISCLOSED INCOME OF RS . 42,72,42/ - IN THE RETURN OF INCOME FILED . THIS FACT WAS ALSO ADMITTED BY THE ASSESSEE IN HIS OWN SUBMISSIONS DURING THE SCRUTINY PROCEEDINGS VIDE LETTER DATED 22/02/2016 IN POINT NO.9. 4 . SIMILARLY FOR THE A.Y. 2013 - 14 ALSO, THE AO STATED THAT THERE WAS SEIZED MATERIAL IN PAGE NOS. 1 TO 18 AND 25 OF ANNEXURE PV/A/13 , WHICH WAS SEIZED DURING THE COURSE OF SEARCH , ON THE BASIS OF WHICH NOTICE U/SEC. 153C WAS ISSUED. FOR THE SAKE OF CLARITY , WE EXTRACT PARA 2.3 OF THE MISC.APPLICATION WHICH READS AS UNDER: - 3 M A NO S . 03 & 04 / VIZ /2020 ( PATTAPAGALU VENKATA RAO ) 2.3 HOWEVER, INCRIMINATING MATERIAL WAS FOUND AND SEIZED AS PER LOOSE SHEET NOS. 1 TO 18 AND 25 OF ANNEXURE PV/A/13 DURING THE SEARCH OPERATIONS FOR THE A.Y. 20 13 - 1 4 BASED ON WHICH NOTICE U/SEC. 153C WAS ISSUED AND ASSESSEE HAS ADMITTED THE ADDITIONAL UNDISCLOSED INCOME OF RS. 56,69,530 / - IN THE RETURN OF INCOME FILED. ... HENCE, THE AO SUBMITTED IN MISC.APPLICATION THAT THE HON'BLE ITAT HAS NOT CONSIDERED THE ABOVE ISSUES WHILE DISPOSING OF THE APPEAL S , THEREFORE REQUESTED TO RECALL THE ORDER , S I N C E , THERE I S A MISTAKE APPARENT ON RECORD AND TO ADJUDICATE A P P E A L S AFRESH ON MERITS. 5. DURING THE COURSE OF HEARING, LD. D R SUPPORTED THE MISC.APPLICATION AND ARGUED THA T THOUGH THERE WAS NO DIRECT REF ERENCE OF THE SEIZED MATERIAL MENTIONED IN THE MISC.APPLICATION , THERE WAS INDIRECT REFERENCE, HENCE REQUESTED TO RECALL THE ORDER FOR FRESH ADJUDICATION. 5.1 ON THE OTHER HAND, THE L D.AR SUBMITTED THAT THE ISSUE RAISED IN THE MISC.APPLICATION S ARE NOT BORN OUT OF THE ASSESSMENT ORDER , AND THE AO IS ASK ING FOR CONSIDERATION OF FRESH MATERIAL AND FRESH FACTS WHICH IS NOT PERMISSIBLE IN MISCELLANEOUS APPLICATION AND THEREFORE SUBMITTED THAT THERE IS NO MISTAKE IN THE ORDER OF THE ITAT, HENCE, REQUESTED TO DISMISS THE MISC.APPLICATION S OF THE REVENUE . 6 . WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE ORDER S OF THE LOWER AUTHORITIES AS WELL AS ORDER OF THIS TRIBUNAL . AS SEEN FROM THE ASSESSMENT ORDER, THE AO HAS NOT MADE ANY A DDITION ON THE BASIS OF SEIZED MATERIAL. THE ONLY SEIZED MATERIAL REFERRED BY THE AO WAS THE TRANSACTION RECORDED AT PAGE NO.71 OF ANNEXURE - A/ ARB/ 1 FOUND IN THE RESIDENCE OF ADAPA RAMBABU WHOSE CASE 4 M A NO S . 03 & 04 / VIZ /2020 ( PATTAPAGALU VENKATA RAO ) WAS COVERED U/SEC. 13 2 OF THE ACT AND NO OTHER MATERIAL WAS REFERRED TO BY THE AO IN THE ASSESSMENT ORDER EITHER FOR THE A.Y. 2009 - 10 OR 2013 - 14 . WE HAVE ALSO DIRECTED THE AO S PRESENCE FOR CLARIFICATION ON 05/05/2021 AND ASKED THE AO TO TAKE US TO RELEVANT PART OF THE ORDER OF THE AO, WHERE THE MATERIAL IN PAGE NO S . 1 TO 18 OF ANNEXURE - PV/A/13 AND THE STATEMENT DATED 22/02/2016 WAS REFERRED TO ? BUT THE PRESENT AO WAS ALSO UNABLE TO SHOW THE REFERENCE OF THE SAID SEIZED MATERIAL AND THE STATEMENT IN THE ASSESSMENT ORDER S. H OWEVER, HE ASSERTED THAT ON THE BASIS OF SEIZED MATERIAL AND THE STATEMENT RECORDED ON 22/02/2016, THE ASSESSEE HAS FILED THE RETURN OF INCOME U/SEC. 153C ADMITTING THE ADDITIONAL INCOME. WE HAVE GONE THROUGH THE ARGUMENTS MADE BY THE LD.AR AND THE LD.DR ON THE DATE OF HEARING AND DO NOT FIND ANY SUCH REFERENCE MADE BY THE LD. D R DURING THE COURSE OF APPE LLATE PROCEEDINGS. THE ONLY REFERENCE WAS PAGE NO.71 OF ANNEXURE - A/ARB/1 WHICH WAS EXTRACTED BY THE L D. CIT(A) IN PAGE NO.5 AND THE SAME IS RELATED TO THE A.Y. 2014 - 1 5 . THEREFORE, WE, FIND NO MISTAKE IN THE ORDER OF THE ITAT WHICH CALLS FOR ANY INTERFERENCE , HENCE, THE MISC.APPLICATION S FILED BY THE REVENUE ARE DISMISSED. 7 . IN THE RESULT, MISC.APPLICATIONS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON TH IS 1 2 T H DAY OF MAY , 2021 . S D / - S D / - (N.K. CHOUDHRY) (D.S. SUNDER SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 1 2 T H MAY , 20 2 1 . 5 M A NO S . 03 & 04 / VIZ /2020 ( PATTAPAGALU VENKATA RAO ) VR/ - COPY TO: 1. THE ASSESSEE - PATTAPAGALU VENKATA RAO, D.NO. 79 - 21 - 3, MALLINA NAGAR, RAJAHMUNDRY. 1. THE REVENUE ACIT, CENTRAL CIRCLE - 1, RAJAHMUNDRY. 2. THE PR. CIT (CENTRAL ) , VISAKHAPATNAM. 3. THE CIT(A) - 3 , VISAKHAPATNAM. 4. THE D.R . , VISAKHAPATNAM. 5. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.