DCIT, Vijayawada V. M/s Sri Sai Lakshmi Constructions & Co, Vijayawada

MA 72/VIZ/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1347 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-11-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 23-10-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Keywords: Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 147

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , ACCOUNTANT MEMBER M .A.NO. 4 7 /VIZ/ 201 7 (ARISING OUT OF I.T.A.NO.262/VIZ/2015) ( / ASSESSMENT YEAR: 20 0 8 - 20 0 9 ) SRI SAI LAKSHMI CONSTRUCTIONS & CO, D.NO.59 - 7 - 11/2, SRI SAI NILAYAM ACHARYA RANGA STREET RAMACHANDRA NAGAR VIJAYAWADA [PAN : A A OFS7183E ] VS. DY .COMMISSIONER OF INCOME TAX CICLE - 2 (1) VI JAYAWADA ( / APPELLANT) ( / RESPONDENT) M .A.NO. 72 /VIZ/201 7 (ARISING OUT OF I.T.A.NO.262/VIZ/2015) ( / ASSESSMENT YEAR: 2008 - 2009 ) DY.COMMISSIONER OF INCOME TAX CICLE - 2(1) VIJAYAWADA SRI SAI LAKSHMI CONSTRUCTIONS & CO, D.NO.59 - 7 - 11/2, SRI SAI NILAYAM ACHARYA RANGA STREET RAMACHANDRA NAGAR VIJAYAWADA [PAN : A AOFS7183E] ( / APPELLANT) ( / RESPONDENT) / ASSESSEE BY : SHRI G.V.N.HARI, AR / REVENUE BY : S MT. SUMAN MALIK , DR / DATE OF HEARING : 1 6 . 1 1 . 2018 / DATE OF PRONOUNCEMENT : 28 . 1 1 .2018 2 M .A. NO S .4 7 /VIZ/201 7 AND 72/VIZ/2017 SRI LAKSHMI CONSTRUCTIONS AND CO., VIJAYAWADA / O R D E R PER D.S. SUNDER SINGH, ACCOUNTANT MEMBER: TH E S E MISCELLANEOUS APPLICATIONS ARE FILED BY THE ASSESSEE AND THE REVENUE AGAINST THE ORDER OF THE ITAT VIDE I.T.A. NO.262/VIZ/2015 D ATED 2 8 . 04 .201 7 FOR THE ASSESSMENT YEAR (A.Y.) 20 08 - 09 . 2. THE ASSESSEE FILED MISCELLANEOUS APPLICATION STATING THAT HONBLE ITAT IN PARA NO.11 WHILE ADJUDICATING THE ISSUE O F ESTIMATION OF INCOME HELD AS UNDER : 11. THE NEXT ISSUE THAT CAME UP FOR OUR CONSIDERATION FRO M ASSESSEE'S CROSS OBJECTION IS VALIDITY OF RE - ASSESSMENT PROCEEDINGS ON THE GROUND THAT THE A.O. HAS RE - OPENED THE ASSESSMENT MERELY ON 'CHANGE OF OPINION' WITHOUT THERE BEING ANY NEW MATERIAL OR INFORMATION WHICH SUGGESTS ESCAPEMENT OF INCOME WITHIN THE MEANING OF SECTION 147 OF THE ACT, THEREFORE, THE RE - ASSESSMENT PROCEEDINGS ARE ILLEGAL AND VOID - AB - INITIO. DURING THE COURSE OF HEARING, THE LD. A.R. FOR THE ASSESSEE SUBMITTED THAT, IF THE BENCH IS CONSIDERED THE PLEA OF THE ASSESSEE FOR ESTIMATION OF NE T PROFIT BY FOLLOWING ASSESSEE'S OWN CASE FOR THE ASSESSMENT YEAR 2011 - 12, THEN HE WOULD NOT PRESS THE GROUND RELATING TO CHALLENGING THE VALIDITY OF RE - ASSESSMENT PROCEEDINGS. SINCE, WE HAVE DIRECTED THE A.O. TO ESTIMATE NET PROFIT BY FOLLOWING THE ASSESS EE'S OWN CASE FOR THE ASSESSMENT YEAR 2011 - 12, SUBJECT TO A MODIFICATION IN RESPECT OF NET PROFIT ON SUB CONTRACT WORKS, WE DISMISS GROUND RAISED BY THE ASSESSEE CHALLENGING THE VALIDITY OF RE - ASSESSMENT PROCEEDINGS AS NOT PRESSED. 3. THE LD.AR SUBMITTED THAT AN ERROR WAS CREPT IN THE ORDER OF THE ITAT WITH REGARD TO THE CONCESSION WHICH WAS GIVEN CONDITIONALLY. THE LD.AR SUBMITTED THAT ONCE THE ESTIMATION OF NET PROFIT I S NOT IN 3 M .A. NO S .4 7 /VIZ/201 7 AND 72/VIZ/2017 SRI LAKSHMI CONSTRUCTIONS AND CO., VIJAYAWADA ACCORDANCE WITH THE ESTIMATE FOR THE A.Y. 2011 - 12, THE CONCESSION WOULD BE INOPERATIVE AND THE GROUND REGARDING THE VALIDITY OF REASSESSMENT REQUIRED TO BE ADJUDICATED SEPARATELY . IN THIS APPEAL, THE ASSESSEE RAISED CROSS OBJECTION CHALLENGING THE VALIDITY OF REASSESSMENT PROCEEDINGS. DURING THE APPEAL HEARIN G, FOR A QUERY FROM THE BENCH, THE LD.AR HAS ACCEPTED THE ESTIMATION OF INCOME FOLLOWING THE ASSESSEES OWN CASE FOR THE A.Y.2011 - 12 SUBJECT TO MODIFICATION OF NET PROFIT ON SUB - CONTRACT WORKS. DURING THE HEARING OF M A , THE LD.AR SUBMITTED THAT NO SUCH C ONCESSION WAS GIVEN FOR MODIFICATION IN RESPECT OF NET PROFIT ON SUB CONTRACT WORKS. THEREFORE, REQUESTED TO RECALL GROUND NO.1 OF CROSS OBJECTION AND READJUDICATE THE SAME. 4. IN THIS CASE, THE REVENUE HAS FILED THE APPEAL AND THE ASSESSEE HAS FILED CR OSS OBJECTIONS. THE DEPARTMENT ALSO FILED MISCELLANEOUS APPLICATION STATING THAT THE ESTIMATION OF INCOME ADOPTING THE RATE OF EARLIER YEAR WOULD GO TO REDUCE THE RETURNED INCOME. THEREFORE, SUBMITTED THAT THERE IS A MISTAKE IN THE ORDER OF ITAT WHICH NE EDS TO BE RECTIFIED. 4 M .A. NO S .4 7 /VIZ/201 7 AND 72/VIZ/2017 SRI LAKSHMI CONSTRUCTIONS AND CO., VIJAYAWADA 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE SUBMISSIONS MADE BY BOTH THE PARTIES. WE OBSERVE THAT THERE WAS A MISTAKE IN THE ORDER OF THE ITAT, THEREFORE, WE CONSIDER IT IS NECESSARY TO RE - ADJUDICATE THE ISSUE OF ESTIMAT ION OF INCOME AS WELL AS THE CROSS OBJECTIONS RAISED BY THE ASSESSEE WITH REGARD TO VALIDITY OF RE ASSESSMENT. ACCORDINGLY, THE ORDER IS RECALLED TO ADJUDICATE THE CROSS OBJECTION AND THE ESTIMATION OF INCOME AND THE CASE IS FIXED FOR HEARING ON 14.12.2018. SINCE THE DATE OF HEARING IS ANNOUNCED IN THE OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES, NO SEPARATE NOTICE IS REQUIRED TO BE ISSUED FROM THE REGISTRY. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE AND THE REVENUE ARE A LLOWED. O RDER PRONOUNCED IN THE OPEN COURT ON 28 TH NOVEMBER , 2018. SD/ - SD/ - ( . ) ( . . ) (V. DURGA RAO) ( D.S. SUNDER SINGH ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM /DATED : 28 . 1 1 .2018 L.RAMA, SPS 5 M .A. NO S .4 7 /VIZ/201 7 AND 72/VIZ/2017 SRI LAKSHMI CONSTRUCTIONS AND CO., VIJAYAWADA / COPY OF THE ORDER FORWARDED TO: - 1. / THE APPELLANT SRI SAI LAKSHMI CONSTRUCTIONS & CO, D.NO.59 - 7 - 11/2, SRI SAI NILAYAM , ACHARYA RANGA STREET , RAMACHANDRA NAGAR , VIJAYAWADA 2 . / THE RESPONDENT DY.COMMISSIONER OF INCOME TAX, CICLE - 2(1) VIJAYAWADA 3. THE COMMISSIONER OF INCOME TAX, VIJAYAWADA 4 . THE COMMISSIONER OF INCOME TAX (APPEALS) , VIJAYAWADA 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM