Shri Puvvada Gopalakrishna, Machilipatnam V. THE ITO, WARD - 1, Machilipatnam

MA 5/VIZ/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 6041 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 10 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 25-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S R S NARAYAN
• Section: 40A(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO, HON'BLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH, HON'BLE ACCOUNTANT MEMBER M.A.NO. 05/VIZ/2017 ( ITA NO. 10 0 / VIZ /201 3 ) (ASST. YEAR : 20 09 - 1 0 ) PUVVADA GOPALAKRISHNA, PROP. VIJAYA KRISHNA DALL MILL, D.NO. 240, SULTANAGARAM, MACHILIPATNAM. VS. IT O , WARD - 1, MACHILIPATNAM. PAN NO. AOFPP 3177 E ( APPLICANT ) (RESPONDENT) APPLICANT BY : SHRI G.V.N. HARI ADV OCATE . DEPARTMENT BY : SHRI S.R.S. NARAYAN - SR. DR DATE OF HEARING : 0 9 / 1 1 /201 7 . DATE OF PRONOUNCEMENT : 20 / 1 2 /201 7 . O R D E R BY THIS MISC. APPLICATION , THE ASSESSEE SEEKS RECALLING OF THE ORDER PASSED BY THIS TRIBUNAL IN ITA NO. 100/VIZ/2013, DATED 06/09/ 2016. 2. LEARNED COUNSEL FOR THE ASSESSEE, IN THIS MISC. APPLICATION , HAS SUBMITTED THAT THE T RIBUNAL HAS COMMITTED AN ERRO R IN PASSING THE ORDER IN ITA NO. 100/VIZ/2013 BY TAKING INTO CONSIDERATION OF THE FACT S , WHICH ARE CONTRARY TO THE FACTS ON RECORD. ACCORDING TO 2 MA NO. 05/VIZ/2017 (PUVVADA GOPALAKRISHNA) THE L EARNED COUNSEL FOR THE ASSESSEE, BEFORE THE ASSESSING OFFICER, THE AUTHORIZED REPRESENTATIVE HAS NOT AGREED FOR ADDITION , WHICH WAS MADE UNDER SECTION 40A(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE 'ACT') AND THE ADDITION MADE BY THE ASSESSING OFFICER WAS CHALLENGED BEFORE THE LD.CIT(A) BY RAISING A GROUND THAT AUTHORIZED REPRESENTATIVE HAD NOT AGREED FOR THE ADDITION. THEREFORE, HE PRAYED THAT THE ORDER PASSED BY THE TRIBUNAL IN THE ABOVE REFERRED TO APPEAL MAY BE RECALLED . 3. ON THE OTHER HAND, DEPARTMENTAL REPRESENTATIVE STRONGLY OPPOSED FOR RECALLING OF THE ORDER PASSED BY THE TRIBUNAL. 4 . WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIA L AV AILABLE ON RECORD AND ORDER PASSED BY THE TRIBUNAL . 5 . IN THIS MISC. APPLICATION, L EARNED COUNSEL FOR THE ASSESSEE HAS RAISED AN ISSUE THAT THE TRIBUNAL PASSED AN ORDER IN RESPECT OF ADDITION UNDER SECTION 40A(3) THAT BEFORE THE ASSESSING OFFICER, THE AUTHORIZED REPRESENTATIVE HAS NOT AGREED FOR ADDITION. THE CASE OF THE ASSESSEE IS THAT HE HAD NOT AGREED FOR THE ADDITION BEFORE THE ASSESSING OFFICER UNDER SECTION 40A(3) OF THE ACT. WE FIND THAT THE LD. CIT(A) HAS NOT ADJUDICATED THE GROUND RAISED BY THE ASSESSEE AND THE L EARNED COUNSEL HAS ALSO NOT BROUGHT THIS ASPECT WHEN APPEAL IS TAKEN UP FOR ADJUDICATION . THE LD. CIT(A) 3 MA NO. 05/VIZ/2017 (PUVVADA GOPALAKRISHNA) SIMPLY CONSIDERED THE ARGUMENTS AND ALLOWED THE APPEAL FILED BY THE ASSESSEE WITHOUT CO NSIDERING THE OBSERVATIONS MADE BY THE ASSESSING OFFICER. WE FIND THAT THE MAIN REASON FOR ADDITION MADE BY THE ASSESSING OFFICER IS BECAUSE THE AUTHORIZED REPRESENTATIVE HAS AGREED FOR ADDITION BEFORE THE ASSESSING OFFICER. THIS ASPECT WAS NOT AT ALL ADJUDICATED BY THE LD. CIT(A) , EVEN BEFORE THE TRIBUNAL, THE ASSESSEE HAS NOT RAISED THIS ISSUE . THE TRIBUNAL GAVE A SPECIFIC FINDING IN THE ORDER OF ITA NO. 100/VIZ/2013 AT PARA NO.7 , WHICH IS REPRODUCED AS UNDER: - 7. ....... I FIND THAT THE A.O. BY FOLLOWING THE PROVISIONS OF SECTION 40A(3) OF THE ACT BY CONSIDERING THE ADDITION MADE BY THE AUTHORIZED REPRESENTATIVE AND ALSO AFTER VERIFYING THE RECORDS, ADDITION IS MADE. ON APPEAL, CIT(A) DELETED THE ADDITION MADE BY THE A.O. BY OBSERVING THAT THE IDENTI T Y OF THE PARTIES IS ESTABLISHED, THE TRANSACTION IS NOT DENIED, THE BOOKS OF ACCOUNT OF THE PAYER AND PAYEE TALLIED AND NO FRAUD WAS ESTABLISHED BY THE REVENUE . THUS, REVENUE HAS MADE AN ADDITION ON TECHNICALITIES AND THE SAME CANNOT BE SUSTAINED. I FIND IN THIS CASE, T HE ASSESSEE HAS PAID MORE THAN RS. 20,000/ - IN A DAY AND OBTAINED THE RECE I PT ONLY FOR RS. 19,000/ - . THIS FACT IS ADMITTED BEFORE THE A.O. IT IS A CLEAR VIOLATION OF SECTION 40A(3) OF THE ACT. THE LD.CIT (A) WITHOUT CONSIDERING SECT I ON 40A(3) OF THE ACT, SIMPLY DELETED THE ADDITION MADE BY THE A.O. I FIND THE ORDER PASSED BY THE LD. CIT(A) IS CONTRARY TO THE PROVISIONS OF SECTION 40A(3) OF THE ACT. THEREFORE, I REVERSE THE ORDER PASSED BY THE CIT(A) AND THE ORDER PASSED BY THE A.O. IS UPHELD. 6 . IN VIEW OF THE ABOVE FINDING GIVEN BY THE TR IBUNAL, WE FIND NO ERROR APPARENT ON THE FACE OF THE ORDER PASSED. THUS, THIS MISC. APPLICATION FILED BY THE ASSESSEE IS DISMISSED. 4 MA NO. 05/VIZ/2017 (PUVVADA GOPALAKRISHNA) 7 . IN THE RESULT, MISC. APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 2 0 T H DAY OF DEC . , 201 7 . S D / - S D / - (D.S. SUNDER SINGH) ( V. DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 2 0 T H DECEMBER , 201 7 . VR/ - COPY TO: 1. THE ASSESSEE - PUVVADA GOPALAKRISHNA, PROP. VIJAYA KRISHNA DALL MILL, D.NO. 240, SULTANAGARAM, MACHILIPATNAM. 2. THE REVENUE ITO, WARD - 1, MACHILIPATNAM. 3. THE CIT, VIJAYAWADA. 4. THE CIT(A) , VIJAYAWADA. 5. THE D.R. , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SENIOR PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.