Deputy Commissioner of Income Tax, Circle-3(2), Hyderabad V. N Padmaja, Hyderabad

MA 71/Hyd/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6083 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 22-12-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 16-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A G N PRASAD
• Assessee Lawyers: P MURALI MOHAN RAO
• Keywords: Unexplained investment
• Section: 143(3); 133A; 69

Judgement Text

MA NOS 7 0 AND 71 OF 2017 N PADMAJA HYDERABAD. PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S.RIFAUR RAHMAN, ACCOUNTANT MEMBER MA NOS.70 & 71/HYD/2017 (ARISING OUT OF ITA NOS.648 & 646/HYD/2016) (ASSESSMENT YEARS: 2010-11 & 2006-07) D.C.I.T. CIRCLE 3(2) HYDERABAD VS SMT. N. PADMAJA HYDERABAD PAN: ABCPN 2453 P (APPELLANT) (RESPONDENT) FOR REVENUE : SHRI A.G.N. PRASAD, DR FOR ASSESSEE : SHRI P. MURALI MOHAN RAO O R D E R PER SMT. P. MADHAVI DEVI, J.M. THE ABOVE MISCELLANEOUS APPLICATIONS ARE FILED BY T HE REVENUE SEEKING RECTIFICATION OF THE ALLEGED MISTAK E IN THE ORDER OF THE TRIBUNAL DATED 30.06.2017 AND 06/07/2017 FOR TH E A.YS 2010-11 & 2006-07 RESPECTIVELY. 2. IT IS SUBMITTED BY THE REVENUE THAT FOR THE A.Y 2010- 11, DURING THE ASSESSMENT PROCEEDINGS U/S 143(3) R. W.S. 147 OF THE ACT, THE AO HAS MADE A DISALLOWANCE OF RS.27,2 4,000 AND THE CONSEQUENTIAL ADDITION U/S 69 OF THE ACT. IT IS SUB MITTED THAT THE ASSESSEE FILED AN APPEAL BEFORE THE CIT (A) STATING THAT SHE HAD DATE OF HEARING: 22.12 . 2017 DATE OF PRONOUNCEMENT: 1 0 . 0 1 .2018 MA NOS 7 0 AND 71 OF 2017 N PADMAJA HYDERABAD. PAGE 2 OF 4 MADE AN AGREEMENT TO SELL THE PROPERTY AND RECEIVED THE ABOVE AMOUNT AS ADVANCE BUT SUBSEQUENTLY NEITHER THE SALE WAS CONCLUDED NOR WAS THE AMOUNT RETURNED TO THE AGREEM ENT HOLDER I.E. SPR INFRASTRUCTURE INDIA PVT. LTD, AND THEREFO RE, IT WAS THE SOURCE FOR THE INVESTMENT IN JEWELLERY BY THE ASSES SEE AND HENCE CANNOT BE TAXED AS UNEXPLAINED INVESTMENT. THE CIT (A) HELD THAT THE CASH WITHDRAWAL BY THE ASSESSEE FROM THE COMPAN Y IS THE SOURCE FOR THE INVESTMENT IN JEWELLERY AND EVEN IF THE ABOVE ADDITION IS DELETED, IT IS STILL LIABLE TO BE TAXED U/S 2(22)(E) OF THE ACT, AS THE ASSESSEE IS THE DIRECTOR OF M/S. SPR IN FRASTRUCTURE (P) LTD. 3. FURTHER, FOR THE A.Y 2006-07, DURING A SURVEY OPERATION U/S 133A OF THE ACT, IT WAS FOUND THAT TH ERE WERE CASH DEPOSITS INTO THE BANK ACCOUNTS OF THE ASSESSEE. DU RING THE ASSESSMENT U/S 143(3) R.W.S. 147 OF THE ACT, THE AO ADDED THE SAID DEPOSITS U/S 69A OF THE ACT. THE ITAT DELETED THE ADDITION TREATING IT AS EXPLAINED DEPOSITS. THE REVENUE FILE D THE M.A. CONTENDING THAT THE ALTERNATIVE GROUND RAISED BY TH E ASSESSEE ON SIMILAR LINES AS IN A.Y 2010-11 HAS NOT BEEN ADJUDI CATED BY THE TRIBUNAL RESULTING IN AN APPARENT MISTAKE WHICH NEE DS RECTIFICATION. 4. THE LEARNED DR SUBMITTED THAT THE TRIBUNAL HAS ALLOWED THE APPEALS OF THE ASSESSEE HOLDING THAT TH E ASSESSEE HAS EXPLAINED THE SOURCE FOR THE INVESTMENT IN JEWELLER Y DURING THE FINANCIAL YEAR 2009-10 AND FOR CASH DEPOSITS DURING THE FINANCIAL MA NOS 7 0 AND 71 OF 2017 N PADMAJA HYDERABAD. PAGE 3 OF 4 YEAR 2005-06 AND HENCE ADDITIONS MADE U/S 69 AND U/ S 69A OF THE ACT TOWARDS UNEXPLAINED INVESTMENT IN JEWELLERY AND CASH DEPOSITS ARE DELETED. ACCORDING TO THE LEARNED DR, THOUGH THE ASSESSEE HAS RAISED THE ALTERNATIVE GROUNDS IN BOTH THE APPEALS THAT IT CANNOT BE TREATED AS A DEEMED DIVIDED U/S 2 (22)(E) OF THE ACT, THE TRIBUNAL HAS FAILED TO ADJUDICATE THE SAID GROUNDS AND THEREFORE, THERE IS A MISTAKE APPARENT FROM THE REC ORD. THUS, THE LEARNED DR PRAYED FOR RECTIFICATION OF THE SAID MIS TAKE. 5. THE LEARNED COUNSEL FOR THE ASSESSEE, SHRI P. MU RALI MOHAN RAO, SUBMITTED THAT THERE IS NO MISTAKE IN TH E ORDER OF THE TRIBUNAL AS THE TRIBUNAL HAS CONFIRMED THE ORDER OF THE CIT (A) THAT THE SOURCE FOR INVESTMENT IN JEWELLERY IS EXPL AINED. THEREFORE, ACCORDING TO HIM, THERE IS NO MISTAKE APPARENT FROM RECORD WHICH NEEDS RECTIFICATION. 6. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE M ATERIAL ON RECORD, WE FIND THAT THE APPEALS BEFORE THE TRIB UNAL WERE FILED BY THE ASSESSEE AND THE ALTERNATIVE GROUNDS RAISED BY THE ASSESSEE ARE NOT ADJUDICATED BY THE TRIBUNAL. HOWEV ER, WE FIND THAT NON-ADJUDICATION OF THE SAID GROUNDS BY THE TR IBUNAL DO NOT CAUSE ANY PREJUDICE TO THE INTERESTS OF THE REVENUE AND THEREFORE, WE SEE NO MISTAKE IN THE ORDER OF THE TRIBUNAL WHIC H NEEDS RECTIFICATION AT THE INSTANCE OF THE REVENUE. 7. IN THE RESULT, M.A FILED BY THE REVENUE FOR THE A.Y 2010-11 AND 2006-07 ARE DISMISSED. MA NOS 7 0 AND 71 OF 2017 N PADMAJA HYDERABAD. PAGE 4 OF 4 ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH JANUARY, 2018. SD/- SD/- (S.RIFAUR RAHMAN) ACCOUNTANT MEMBER (P. MADHAVI DEVI) JUDICIAL MEMBER HYDERABAD, DATED 10 TH JANUARY, 2018. VINODAN/SPS COPY TO: 1 DY.CIT, CIRCLE 3(2) HYDERABAD 2 P. MURALI & CO. CAS, 6-3-655/2/3 SOMAJIGUDA, HYDE RABAD 500082 3 CIT (A) - 3 HYDERABAD 4 PR. CIT 3, HYDERABAD 5 THE DR , ITAT HYDERABAD 6 GUARD FILE BY ORDER