ITO, Ward-14(1), Hyd, Hyderabad V. Prabhakar Reddy Ingala, Hyd, Hyderabad

MA 49/Hyd/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6587 (ITAT-HYDERABAD)
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-05-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 11-05-2018
• Assessment Year: 2005-2006
• Appeal Filed On: 24-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K A SAI PRASAD
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A (SMC), HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER M.A. NO. 49/HYD/2017 (ARISING OUT OF ITA NO. 953/HYD/2016) ASSESSMENT YEAR: 2005-06 THE INCOME TAX OFFICER, WARD-14(1), HYDERABAD VS SRI PRABHAKAR REDDY INGALA, HYDERABAD [PAN: AABPI9886M] (APPLICANT) (RESPONDENT) FOR REVENUE : SHRI SUNKU SRINIVAS, DR FOR ASSESSEE : SHRI K.A. SAI PRASAD, AR DATE OF HEARING : 11-05-2018 DATE OF PRONOUNCEMENT : 31-05-2018 O R D E R PER B. RAMAKOTAIAH, A.M. : THIS MISCELLANEOUS APPLICATION IS PREFERRED BY THE REVENUE AGAINST THE ORDER IN ITA NO.953/HYD/2016, DATED 08-02- 2017, WHEREIN IT WAS HELD AS UNDER: 7. I HAVE CONSIDERED THE RIVAL CONTENTIONS AND PE RUSED THE DOCUMENTS PLACED ON RECORD IN THE PAPER BOOK. THE ADDRESS ON WHICH THE NOTICE WAS AFFIXED WAS NOT THE ADDRESS OF ASSES SEE, NEITHER IN THE PAST NOR LATER. AS SEEN FROM THE WRITTEN SUBMISSIO NS AND THE COPIES PLACED ON RECORD OF RETURNS FILED, THE ADDRESS OF A SSESSEE WAS 8-2- 686/8/2, ROAD NO. 12, BANJARA HILLS, HYDERABAD. TH E SAME ADDRESS WAS ALSO STATED IN THE SALE DEEDS PLACED ON RECORD. FROM WHERE THE AO GOT THE ADDRESS OF 195/A, ROAD NO. 13, WHITE HOUSE, JUBILEE HILLS, HYDERABAD WAS NOT KNOWN. HOW IT WAS THE LAST KNOWN ADDRESS WAS NOT ANSWERED BY THE LD.CIT(A), WHO EXAMINED THE RECORD AS STATED IN PARA 2 M.A. NO. 49/HYD/2017 8.2, WHILE CONFIRMING ON MERITS. SINCE THE PROCEDU RE FOLLOWED FOR AFFIXTURE OF NOTICE IS NOT PROPER, FOLLOWING THE PRINCIPLES L AID DOWN BY THE CO- ORDINATE BENCH IN THE CASE OF CHANDRA AGENCIES VS. ITO [89 ITD 1] (DEL) AND THE HON'BLE PANJAB AND HARYANA HIGH COURT IN THE CASE O F CIT VS. NAVEEN CHANDER [323 ITR 49], ASSESSMENT COMPLETED I N PURSUANCE OF AN INVALID NOTE IS NOT VALID. 7.1. EVEN ON MERITS, IT IS NOT CLEAR HOW THE INFORM ATION WAS RECEIVED, THE BASIS OF THE SAME AS ASSESSEE WAS NOT GIVEN ANY OPPORTUNITY. NEITHER THE SO CALLED STATEMENT WAS FURNISHED NOR T HE CROSS-EXAMINATION OF THE PERSON WAS PROVIDED. EVEN THE LD.CIT(A) DID NOT EXAMINE HOW THE SAID MANASA ESTATES CAME INTO PICTURE WHEN THE DO CUMENT INDICATES THAT THE MONIES WERE RECEIVED THROUGH JANMABHOOMI ESTATES. SINCE THE VERY BASIS FOR ADDITION IS NOT RELIABLE, THE ADDITI ON PER SE CANNOT BE SUSTAINED. 7.2. THUS ON BOTH GROUNDS, THE ORDER OF THE AO CANN OT BE SUSTAINED. THE GROUNDS ARE ACCORDINGLY ALLOWED. 2. IT WAS THE CONTENTION OF REVENUE THAT ORIGINALLY A NOTI CE U/S. 148 OF THE ACT WAS DESPATCHED WITH SPEED POST WHICH SEEM S TO HAVE BEEN DELIVERED ON 27-03-2012 AND IN ORDER TO EN SURE SERVICE OF NOTICE WITHIN TIME FRAME, AO RESORTED TO SERVICE BY AFFIXTURE AT THE LAST KNOWN ADDRESS OF D.NO. 12, BANJARA HILLS, HY DERABAD. IT WAS FURTHER SUBMITTED THAT EVEN THOUGH THE NOTICE U/S. 142 (1) OF THE ACT WAS WRONGLY ADDRESSED, IT WAS SERVED ON ASSESS EES WIFE AND NOT BY AFFIXTURE AND FURTHER, IT WAS CONTENDED THAT A SSESSEE HAS NOT RAISED ANY OBJECTION WITH REGARD TO ISSUANCE OF NOTICE. ON MERITS, IT WAS SUBMITTED THAT THE ASSESSMENT WAS RE-OPENED ON THE INFORMATION THAT ASSESSEE HAS PAID EXTRA CONSIDERATI ON TO M/S. MANASA ESTATES. ON THE STRENGTH OF THE ABOVE, IT W AS PLEADED THAT THE ORDER MAY BE RE-CONSIDERED AND NECESS ARY MODIFICATION ORDERS MAY BE ISSUED. 3 M.A. NO. 49/HYD/2017 3. AFTER CONSIDERING THE RIVAL CONTENTIONS OF THE DR WHO RELIED ON THE CONTENTS IN MISCELLANEOUS APPLICATION AND OBJEC TIONS OF THE LD. COUNSEL, I AM OF THE OPINION THAT THERE IS NO MERIT IN THE CONTENTIONS OF REVENUE. FIRST OF ALL, IT WAS NOT EXPLAI NED WHY A NOTICE U/S. 148 WAS TO BE SERVED BY WAY OF AFFIXTURE WHEN REVENUE CONTENDS THAT NOTICE WAS SERVED THROUGH SPEED PO ST. THE AO HAS NOT PLACED ON RECORD ANY ACKNOWLEDGEMENT OF SERVICE BY SPEED POST TO VERIFY THE CONTENTION. THE ONLY EVIDEN CE FILED IS BY SERVICE BY AFFIXTURE. AS SEEN FROM THE REPORT OF SERVI CE BY AFFIXTURE PLACED ON RECORD NOW, THE COMPLETE ADDRESSES OF THE W ITNESSES ARE NOT AVAILABLE AND THE NAME AND DESIGNATION OF THE PERSO N WHO SERVED [PRINTED FORM INDICATES ITI] HAS NOT BEEN REVEA LED. SINCE THE EVIDENCE ITSELF IS INCOMPLETE, NO CREDENCE CAN BE GIVEN TO THA T. FURTHER, IT WAS ALSO NOT EXPLAINED HOW A WRONG ADDRESS HAS BEEN UTILISED BY THE AO FOR SERVICE OF NOTICE U/S. 142(1). WHILE ADMITTING THAT IT WAS SERVED ON ASSESSEES WIFE, THE ACKNOWLEDGMENT WAS ALSO NOT PLACED ON RECORD. AS FAR AS THE MERITS ARE CONCERNED, IT IS ALSO NOT EXPLAINED HOW THE PAYMENT TO M/S. MANASA ESTATES HAS BEEN CONSIDERED, WHEN ASSES SEE HAS ORIGINALLY PURCHASED THE SAME FROM M/S. JANMABHOOMI ESTATES, WHO IN TURN GOT IN REGISTERED THROUGH M/S. MANASA ESTATE S. THE LINK BETWEEN THE ORIGINAL PAYMENT TO M/S. JANMABHOOMI ESTATES AND SO CALLED ON MONEY PAYMENT TO M/S. MANASA ESTATES HAS NOT BEEN PLACED ON RECORD. IT WAS ALSO STATED IN THE ORD ER THAT NEITHER THE SO CALLED STATEMENT WAS FURNISHED NOR THE CROSS-EX AMINATION OF THE PERSON WAS PROVIDED. EVEN IN THIS MISCELLANEOU S APPLICATION ALSO NO SUCH INFORMATION WAS FORTHCOMING FROM THE REVENUE. IN VIEW OF THAT, I DO NOT FIND ANY REASON TO INTERFERE WITH 4 M.A. NO. 49/HYD/2017 THE ORDER OF SMC BENCH AND CONSIDER THE CONTENTIONS RAI SED MISCELLANEOUS APPLICATION NOW. 4. IN THE RESULT, MISCELLANEOUS APPLICATION IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST MAY, 2018 SD/- (B. RAMAKOTAIAH) ACCOUNTANT MEMBER HYDERABAD, DATED 31 ST MAY, 2018 TNMM 5 M.A. NO. 49/HYD/2017 COPY TO : 1. INCOME TAX OFFICER, WARD-14(1), HYDERABAD. 2. SRI PRABHAKAR REDDY INGALA, PLOT NO. 48, KAVURI HILLS, PHASE-I, JUBILEE HILLS, HYDERABAD. 3. CIT (APPEALS)-9, HYDERABAD. 4. PR.CIT-6, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.