M. A.R Rajakumar (HUF) Rep by son M.A.N Raja Mohan, Eluru V. ACIT, Circle-1, Vijaywada

MA 48/Hyd/1997

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 2151 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 27 year(s) 2 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-05-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 21-03-2024
• Assessment Year: misc
• Appeal Filed On: 03-03-1997
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: APARNA VILLURI
• Assessee Lawyers: M.A.N.RAJ MOHAN; LR
• Keywords: Search and seizure; Question of law
• Section: 254(2)

Judgement Text

आयकरअपीलीयअधिकरण, धिशाखापटणमपीठ, धिशाखापटणम IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAMBENCH, VISAKHAPATNAM श्री द ु व्वूरु आर एल रेड्डी, न्याधयक सदस्य एिं श्री एस बालाकृ ष्णन, लेखा सदस्य के समक्ष BEFORE SHRI DUVVURU RL REDDY, HON’BLEJUDICIAL MEMBER & SHRI S BALAKRISHNAN, HON’BLE ACCOUNTANT MEMBER M.A.Nos.43 to 51/Hyd/1997 (Arising out of W.T.A.No.54 to 62/Hyd/1993&82 to 90/Hyd/1993 (ननधधारण वर्ा/ Assessment Year :1981-82 to 1989-90) M.A.N.Raj Mohan Eluru Vs. Asst.Commissioner of Wealth Tax Eluru (अपीलार्थी/ Appellant) (प्रत्यर्थी/ Respondent) अपीलधथी की ओर से/ Appellant by : Shri M.A.N.Raj Mohan, LR प्रत्यधथी की ओर से/ Respondent by : Dr.Aparna Villuri, DR सुनवधई की तधरीख/ Date of Hearing : 22.03.2024 घोर्णध की तधरीख/Date of Pronouncement : 28.05.2024 आदेश /O R D E R Per Shri S.Balakrishnan Accountant Member : These miscellaneous applications (M.A.s) filed by the assessee arise out of the directions of the Hon’ble High Court of Andhra Pradesh, remitting the matter back to the Tribunal for consideration of the issues raised in the M.As. vide order in W.P.No.15938 of 2000 dated 11.02.2013. These M.A.s are clubbed, heard together and a common order is being passed for the sake of convenience as under and the facts are extracted from M.A.43/Hyd/1997, A.Y.1981-82. 2 M.A. No.43 to 51/Hyd/1997, A.Y. 1981-82 to 1989-90 M.A.N.Raj Mohan, Eluru 2. Brief facts of the case are that the assessee filed appeals against the orders of the Ld.CIT(A) for the A.Y.1981-82 to 1989-90 before ITAT, Hyderabad. Subsequently, due to bifurcation of the State of Andhra Pradesh, the jurisdiction of the assessee shifted to ITAT, Visakhapatnam by order dated 26.05.2023. The issue that was raised in the M.A.s is with respect to non consideration of paper books filed by the assessee before the Tribunal while disposing of the appeal. The ITAT, Hyderabad, while considering the M.A.s held that it has considered almostall the factual aspects raised by the assessee-petitioner in the paper book and they are reflected in the body of the order of the Tribunal. The Tribunal also observed that what is the “exact mistake” that is apparent from the order of the Tribunal was not highlighted by the assessee. The Tribunal, further observed that the purpose of filing of these petitions will be served only if the order of the Tribunal dated 17.08.1995 is reviewed or the appeals as such are re-heard. The Tribunal observed that it is not possible to do either of the above while considering the miscellaneous petitions, thereby rejected the M.A.s filed by the assessee. 3. Aggrieved by the order of the Tribunal, the assessee filed Writ Petition before the Hon’ble High Court of Andhra Pradesh. The Hon’ble High Court of Andhra Pradesh, while disposing of the Writ Petition 3 M.A. No.43 to 51/Hyd/1997, A.Y. 1981-82 to 1989-90 M.A.N.Raj Mohan, Eluru 15938/2000, vide its order dated 11.02.2013directed the Tribunal to entertain the M.A.s filed by the petitioner and then determine whether 9259.700 gms. of gold jewellery belonged to the assessee. The Hon’ble High Court restored the file back to the Tribunal and directed the Tribunal to comply with the Court’s orders dated 03.02.1997 in WTC Nos.36, 39, 40/1996 and WTC SR Nos.34604, 34607, 34616, 34622, 34619 and 34625/1996 and WTC Nos.2, 3, 4, 5, 6 and 7 of 1997. Accordingly, the issue has been transferred to ITAT, Visakhapatnam and the matter was heard. Shri M.A.N.Raj Mohan, legal heir of the assessee (since the assessee deceased) (herein after referred as “LR”) appeared and argued the case. The LR explained in detail regarding the facts of the case from the year 1975 onwards. He argued that the gold seized by the Central Excise Authorities, belonged to the relatives of the assessee, who had come to the assessee’s residence for attending a wedding ceremony. He further explained that the raid by the Central Excise Authorities took place on 18.10.1975, one day before the wedding ceremony. He reiterated that the assessments for the A.Y.1976-77, 1977-78 and 1978- 79 were completed, accepting the fact that the gold does not belong to the assessee. However, he submitted that the department in the subsequent years considered the gold in the hands of the assessee and accordingly 4 M.A. No.43 to 51/Hyd/1997, A.Y. 1981-82 to 1989-90 M.A.N.Raj Mohan, Eluru assessed him to tax. He pleaded that these facts have already been presented in the paper book while filing the appeal before the ITAT. He also further submitted that the revenue accepted 4156 gms as belonged to various persons, who came to attend the wedding and stayed in the residence of the assessee, late A.Raj Kumar, out of the total gold ornaments, weighing 9259.700 gms. He argued that, there is no reason, why the remaining jewellery of 4197 gms. was not considered as belonged to guests, friends and relations, who came to attend the marriage. He vehemently argued that since the revenue accepted that the gold does not belong to the assessee in the A.Y.1976-77, 1977-78 and 1978-79, it cannot again retract and consider the same in the hands of the assessee in the subsequent assessment years. He, therefore, pleaded that these facts were not considered, while disposing of the appeal and to that extent, there is mistake occurred in the order of the Tribunal, which needs to be rectified. 4. Per contra, the Ld.DR fully relied on the orders of the revenue authorities. The Ld.DR submitted that considering the evidences submitted by the assessee, the revenue has considered 4153.100 gms. as not belonged to the assessee and relief was given to the assessee in the subsequent assessment years. The assessee did not prove beyond doubt 5 M.A. No.43 to 51/Hyd/1997, A.Y. 1981-82 to 1989-90 M.A.N.Raj Mohan, Eluru that the balance 4197 gms. belonged to the guests and relatives, who came to attend the marriage. It was not considered by the department. The Ld.DR, therefore, pleaded that there is no mistake apparent in the order of the Tribunal and it needs to be upheld. 5. We have heard both the parties and perused the material available on record, including the written submission of the LR, Shri M.A.N.Raj Mohan. It is found from the submissions made by the assessee that the ITAT vide it’s order dated 17.08.1995 for the A.Y.1981-82 to 1989-90 has considered all the submissions made by the assessee, by partly allowing the appeal of the revenue. Subsequently, the assessee preferred Writ Petition before the Hon’ble High Court of Andhra Pradesh, wherein, the Hon’ble High Court directed the assessee to file M.A.s before the Tribunal to decide on the questions raised by the assessee. Accordingly, the assessee filed M.A.s before the ITAT for the A.Y. 1981-82 to 1989-90. While disposing the M.A.s, the Tribunal observed that there is no mistake apparent in the order of the Tribunal, thereby dismissed the M.A.s of the assessee. Aggrieved by the dismissal of M.A.s, the assessee once again filed Writ Petition before the Hon’ble High Court of Andhra Pradesh. Hon’ble High Court of Andhra Pradesh observed that the Tribunal failed to consider the ownership of the gold jewellery of 9259.700 gms and it 6 M.A. No.43 to 51/Hyd/1997, A.Y. 1981-82 to 1989-90 M.A.N.Raj Mohan, Eluru was not open to the Tribunal to say in the impugned order that it is unable to understand what is the “exact mistake”, which is apparent from its order and it had considered “almost all” the factual aspects. Hon’ble High Court observed that the revenue has not appealed against the order of the High Court dated 03.02.1997 and therefore, the order of the High Court has become final and should be given effect to by the Tribunal. Therefore, the Hon’ble High Court directed the Tribunal to entertain the MAs and thereby consider the issues raised in the M.A.s filed by the assessee. The only argument of the assessee is that the revenue has not objected to the fact that the gold pertains to the relatives and friends of the assessee, who had come for attending the marriage, while assessing the wealth tax returns for the A.Ys. 1976-77 to 1978-79. Even though the submissions by the assessee in the MA originally filed has been considered by the Tribunal, the assessee once again reiterated that the Department has accepted the Wealth Tax returns by not considering the Gold in the hands of the assessee for the AYs 1976-77 to 1978-79. However, the assessee did not make any arguments regarding the assessment years 1979-80 and 1980-81. It is found from the paper book submitted by the assessee that during the A.Y. 1979-80 and 1980-81, the revenue had considered the gold in the hands of the assessee and 7 M.A. No.43 to 51/Hyd/1997, A.Y. 1981-82 to 1989-90 M.A.N.Raj Mohan, Eluru accordingly passed wealth tax assessment order for the A.Y.1979-80 and 1980-81. As per section 254(2) of the Act, which empowers the Tribunal to rectify any mistake apparent on record and does not permit review of its own order. However, as directed by the Hon’ble High Court of Andhra Pradesh, the Tribunal considered the submissions made by the LR reiterating the principle of res judicata. The assessee carried the matter to the Ld.CWT(A) for the A.Y. 1979-80 and 1980-81 and then to the ITAT. Both the revenue authorities and the ITAT rejected the appeals of the assessee stating that the principles of res-judicata do not apply to income tax proceedings. However, we find that the assessee has not highlighted the order of the Hon’ble High Court of Andhra Pradesh in RC No. 146 of 1990 wherein the Hon’ble High Court of Andhra Pradesh has held that the facts and circumstances of the AYs 1979-80 and 1980-81 are different from the facts and circumstances of the AYs 1974-75 to 1978-79 thereby dismissing the RC No. 146 of 1990 against the assessee. The petition preferred by the assessee u/s 256(1) of the Act to the Hon’ble High Court for decision on the following question of law : 1. “whether on the facts and in the circumstances of the case, the Tribunal was justified in taking the status of the assessee as H.U.F. (Specified)?” 8 M.A. No.43 to 51/Hyd/1997, A.Y. 1981-82 to 1989-90 M.A.N.Raj Mohan, Eluru 2. “Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that though the assessments for 1974-75 to 1978-79 have been completed after raid on 18.10.75 accepting the jewellery shown by the assessee there is no res judicata in Income-Tax proceedings as each is independent and so the assessments made for 1979-80 and 1980-81 on the basis of materials seized by the central excise authorities on 18.10.75 are valid?” The Hon’ble High Court of Andhra Pradesh, while disposing the R.C.No.146 of 1990 observed and held that “It is true that for the A.Y.1974-75 to 1978-79, the proceedings before the Central Excise Authorities, relating to seizure of gold were pending. It is only on 30.11.1978, the proceedings have become final. As long as the proceedings have not become final, the Assessing Authorities, could not have taken into account the addition of gold, as there is no order conclusively establishing that the gold belonged to the assessee. Further, there is no evidence before us as to whether the order of the Government of India dated 30.11.78 was brought to the notice of the Assessing Authorities, under the Wealth Tax Act. The Wealth Tax Officer has not given any finding that the gold, which is now sought to be added, did not belong to the assessee. In view of the above, it cannot be said that the basic facts for the assessment year 1974-75 to 1978-79 and 1979-80 and 1980- 81 are the same. Unless the basic facts are one and the same, the question of applicability of res judicata does not arise. In view of the above, it is difficult to accept the contention of the learned counsel for the assessee that since the basic facts are one and the same for the assessment year, 1974-75 to 1978-79 and 1979-80, 1980-81, the principle of res-judicata applies. In the light of the view which we have taken, it is not necessary to refer to the judgement of the Supreme Court relied on by the learned counsel. In view of the above, we answer Question No.2 in the affirmative and against the assessee. It is a settled view that the principle of res-judicata is not applicable to income tax proceedings and each assessment year is different. Further we also find from the order of the Hon’ble High Court, that the revenue has rightly considered the gold in the hands of the assessee after 9 M.A. No.43 to 51/Hyd/1997, A.Y. 1981-82 to 1989-90 M.A.N.Raj Mohan, Eluru conclusion of the proceedings of the Central Excise Authorities on 30.11.1978. There is no material placed before us, whether the assessee has appealed against the order of the Hon’ble High Court of Andhra Pradesh. In the light of the facts and circumstances given above, we find that the Tribunal has considered all the facts and material available on record, while disposing of the appeals filed by the assessee. We do not find any mistake apparent on record and hence no rectification is required in the order of the Tribunal. In view of the above discussions, we do not find any merit in the M.A.s filed by the assessee and we are inclined to reject the same. 9. In the result, M.A.s filed by the assessee are dismissed. Order pronounced in the open court on 28 th May,2024. Sd/- Sd/- (द ु व्वूरुआर.एल रेड्डी) (एस बालाकृ ष्णन) (DUVVURU RL REDDY) (S.BALAKRISHNAN) न्याधयक सदस्य/JUDICIAL MEMBER लेखा सदस्य/ACCOUNTANT MEMBER Dated : 28.05.2024 L.Rama, SPS 10 M.A. No.43 to 51/Hyd/1997, A.Y. 1981-82 to 1989-90 M.A.N.Raj Mohan, Eluru आदेश की प्रतितिति अग्रेतिि/Copy of the order forwarded to:- 1. रधजस्व/The Revenue–The Asst. Commissioner of Wealth Tax, Eluru 2. ननधधाऩरती/ The Assessee–M.A.N.Raj Mohan, S/o late M.A.R.Raj Kumar, 4- 10-6, Agraharam, Eluru, East Godavari Dist. 3. The Principal Commissioner of Income Tax, Rajahmundry 4.नवभधगीय प्रनतनननध, आयकरअपीलीयअनधकरण, नवशधखधपटणम / DR,ITAT, Visakhapatnam 5..गधर्ा फ़धईल / Guard file आदेशधनुसधर / BY ORDER Sr. Private Secretary ITAT, Visakhapatnam