JCIT(OSD), Circle-1, Nellore V. Alle Bala Nagi Reddy , Kadapa

MA 8/Hyd/2021

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 6164 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-04-2021
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB-A
• Assessment Year: 2012-2013
• Appeal Filed On: 15-03-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUNIL KUMAR PANDEY
• Keywords: Additional evidence
• Section: 143(3); 254(2)

Judgement Text

MA NO 8 OF 2021 ALLE BALA NAGI REDDY KADAPA PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH, HYDERABAD (THROUGH VIDEO CONFERENCING) BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER M.A.NO.8/HYD/2021 (ARISING OUT OF ITA NO.1795/HYD/2018) ASSESSMENT YEAR: 2012-13 JT.COMMISSIONER OF INCOME TAX (OSD) CIRCLE -1 NELLORE VS. SRI ALLE BALA NAGI REDDY KADAPA PAN:ADOPR7451D (APPELLANT) (RESPONDENT) REVENUE BY: SRI SUNIL KUMAR PANDEY, DR ASSESSEE BY : SMT. S. SANDHYA DATE OF HEARING: 09/04/2021 DATE OF PRONOUNCEMENT: 21/04/2021 ORDER PER SMT. P. MADHAVI DEVI, J.M. THIS MA IS FILED BY THE REVENUE U/S 254(2) OF THE A CT SEEKING RECTIFICATION OF THE ALLEGED MISTAKE IN THE ORDER OF THE TRIBUNAL IN ITA NO.1795/HYD/2018, DATED 31.12.2020. THE SUBMISSIONS OF THE REVENUE IN THE M.A ARE AS UNDER: TO THE ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL ROOM NO. 502 FT 505, VTH FLOOR CGO TOWERS, KAVADIGUDA SECUNDERABAD - 500080 M.A. 8/H/2021 (ITA 1795/HYD/2018) SIR, SUB: FILING OF MISCELLANEOUS APPLICATION ON THE ORD ER OF THE HON'BLE ITAT, HYDERABAD, 'A' - BENCH IN ITA NO. 1795/HYD/20 18 DATED 31-12-2020 IN THE CASE OF SRI. ALLE BALA NAGI REDDY (PAN: ADOPR7451D) FOR A.Y. 2012-13 _ REGARDING. REF: PR.CIT, TIRUPATI LETTER IN F.NO. ITAT/PR.CIT/T PT/2020-21 DATED 08-03.2021 ********* MA NO 8 OF 2021 ALLE BALA NAGI REDDY KADAPA PAGE 2 OF 4 IT IS SUBMITTED THAT, IN THIS CASE FOR THE ASST. YE AR 2012-13, THE CIT(A), KURNOOL HAS PASSED AN ORDER ON 15-06-2018PA RTLY ALLOWING THE ASSESSEE'S APPEAL VIDE APPEAL NO. ITA NO. 0136/ CIT(A)/KNL/ 2015-16. SUBSEQUENTLY ON BEING AUTHORISED BY THE PR . COMMISSIONER OF INCOME TAX, KURNOOL, THE DEPARTMENT HAD FILED APPEAL BEFORE HON'BLE ITAT, HYDERABAD. WHILE PASSING THE ORDER U/S 143(3) R.W.S, 144 OF TH E INCOME TAX ACT, 1961, THE THEN AO ASSESSING THE TOTAL INCOME D ETAILED AS UNDER AT RS. 29,37,92,150/- (I) AS THE ASSESSEE WAS NOT PRESENT BEFORE AO THE ENTIRE GROSS RECEIPTS TREATED AS INCOME : RS.28 ,64,74,792/- (II) THE DEPOSITS MADE INTO BANK ACCOUNT : RS. 44,93,5001- (III) THE CREDIT PAYMENTS : RS. 98,8871- (IV) THE TERM DEPOSITS MADE INTO THE BANK ACCOUNT : RS. 3,12,240/- (V) AGRICULTURAL INCOME TREATED AS INCOME FROM : RS. 24,12,731/_ OTHER SOURCES : AGGRIEVED WITH THE ABOVE ORDER, THE ASSESSEE HAS PR EFERRED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEA LS), KURNOOL. THE LD. COMMISSIONER OF INCOME TAX (APPEALS), KURNO OL HAS PASSED ORDER VIDE ITA NO.0136/CIT(A)/KNL/2015-16 DATED 15- 06-2018, CONSIDERING THE SUBMISSION OF THE ASSESSEE, DIRECTE D THE AO TO ADOPT A PROFIT RATE OF 7% AND NO DEDUCTION OF DEPRE CIATION FT INTEREST. FURTHER, THE CIT(A) CONSIDERING THE POSSE SSION OF 231 ACRES OF AGRICULTURAL LAND HOLDINGS, HELD THAT 20% OF THE TOTAL AGRICULTURAL INCOME SHOWN IS TO BE INCOME FROM OTHE R SOURCES AND DIRECTED THE AO TO DELETE THE 80% OF THE AGRICULTUR AL INCOME ADDED UNDER OTHER SOURCES. THE LD.C1T(A) CONFIRMED THE AD DITIONS AT S.NO. (III) & (IV) AND DELETED THE ADDITION AT S.NO . (II) ABOVE. THE HON'BLE ITAT, HYDERABAD, 'A' BENCH VIDE ITS ORD ER IN ITA NO. 1795/HYD/2018 DATED 31-12-2020 REMANDED THE ISSUE O F ESTIMATION OF PROFIT @ 7% OF GROSS RECEIPTS BY CIT( A) ONLY TO THE FILE OF AO WITH A DIRECTION TO RE-CONSIDER THE ISSUE AND ACCORDINGLY ESTIMATE THE INCOME DE-NOVO. THE HON'BLE ITAT IS SI LENT AND NOT ADJUDICATED THE OTHER ISSUES IN THE GROUNDS OF APPE AL. HENCE, THIS MISCELLANEOUS PETITION IS SUBMITTED. IT IS FURTHER SUBMITTED THAT THE CHIEF COMMISSIONER OF INCOME TAX, HYDERABAD HAS ACCORDED APPROVAL FOR FILING MISC. AP PLICATION BEFORE THE HON'BLE ITAT HYDERABAD IN THE ABOVE CASE FOR THE A.Y 2012-13. THEREFORE, THE M.A MAY BE CONSIDERED ON TH E ABOVE GROUNDS. YOURS SINCERELY, SD/- (DR.S.K.SENTHIL KUMAR, IRS) JT.COMMISSIONER OF INCOME TAX (OSD) CIRCLE-1 NELLORE 2. THE LEARNED DR REITERATED THE SUBMISSIONS MADE I N THE MA AND THE LEARNED COUNSEL FOR THE ASSESSEE IS ALSO HEARD. 3. HAVING GONE THROUGH THE ORDER OF THE TRIBUNAL AN D ALSO THE GROUNDS OF APPEAL RAISED BY THE REVENUE, W E FIND THAT MA NO 8 OF 2021 ALLE BALA NAGI REDDY KADAPA PAGE 3 OF 4 THERE IS AN INADVERTENT MISTAKE IN DISPOSING OF THE APPEAL OF THE REVENUE BY NOT DEALING WITH ALL THE GROUNDS RAISED BY THE REVENUE. WE FIND THAT THE GROUNDS RAISED BY THE REV ENUE AS UNDER: 1. THE ORDER OF LD.CIT(A) IS ERRONEOUS BOTH ON FAC TS AND IN LAW. 2. THE LEARNED CIT(A) ERRED IN ADMITTING ADDITIONAL EVIDENCE IS CLEAR VIOLATION OF RUL. 46A. THE LEARNE D CIT(A) ERRED IN NOT ALLOWING THE A.O. TO EXAMINE THE ADDIT IONAL EVIDENCE ADMITTED BY HIM. 3. THE LD.CIT(A) ERRED IN DIRECTING THE AO TO ADOPT PROFIT RATE AT 7% ONLY, ON THE GROSS RECEIPTS AS AGAINST V ARIOUS DECISIONS OF DIFFERENT TRIBUNALS/COURTS THAT IT MAY NOT BE OUT OF PLACE TO MENTION THAT THIS TRIBUNAL UNIFORML Y ESTIMATING THE PROFIT FROM MAIN CONTRACT AT 8% TO 1 2.5'0 DEPENDING UPON THE FACTUAL SITUATION AS HELD IN THE CASE OF SRI GUNDAPANENI NAGESWARAO RAO VS. ITO (ITAT HYDERABAD) & M/S. BISWAJIT ROY VS ITO (ITAT HYDERABAD). THE ID. CIT(A) ERRED IN DIRECTING THE A O TO ADOPT THE PROFIT RATE AT LESS THAN THE PROFIT RATE RANGE UNIFORMLY DIRECTED BY VARIOUS TRIBUNALS/COURTS WHEN THE BOOKS OF ACCOUNTS ARE REJECTED. 4. THE LD.CIT(A) ERRED IN ADMITTING THE ADDITIONAL EVIDENCE FILED IN RESPECT OF DEPOSITS AMOUNTING TO RS.44,93,500/- BY THE ASSESSEE (WHICH WAS NOT FILED BEFORE THE AO WITHOUT GIVING AN OPPORTUNITY TO THE A.O. TO EXAMINE THE EVIDENCE AS REQUIRED UNDER RULE 46AOF T HE INCOME TAX RULES. THE ID. CIT(A) FAILED TO APPRECIA TE THE ORDERS OF KERALA HIGH COURT THAT COMMISSIONER (APPE ALS) IS UNDER STATUTORY OBLIGATION TO PUT ADDITIONAL MATERIAL/EVIDENCE TAKEN ON RECORD BY HIM TO ASSESSI NG OFFICER AS HELD IN THE CASE OF COMMISSIONER OF INCO ME TAX VS. E.D BENNY[2016] 283 CTR 212 (KERALA HC). 5. THE LD. CIT(A) ERRED IN ADMITTING THE ADDITIONAL EVIDENCE FILED IN RESPECT OF AGRICULTURAL INCOME BY THE ASSESSEE (WHICH WAS NOT FILED BEFORE THE AO) WITHOU T GIVING AN OPPORTUNITY TO THE AO TO EXAMINE THE EVID ENCE AS REQUIRED UNDER RULE 46A OF THE INCOME TAX RULES. THE LD.CIT(A) FAILED TO APPRECIATE THE ORDERS OF KERALA HE THAT CIT(APPEALS) IS UNDER STATUTORY OBLIGATION TO PUT ADDITIONAL MATERIAL/EVIDENCE TAKEN ON RECORD BY HIM TO ASSESSING OFFICER AS HELD IN THE CASE OF COMMISSION ER OF INCOME TAX VS. E D BENNY [2016] 283 CTR 212 (KERALA HC). 6. ANY OTHER ADDITIONAL GROUND THAT MAY BE URGED AT THE TIME OF HEARING. MA NO 8 OF 2021 ALLE BALA NAGI REDDY KADAPA PAGE 4 OF 4 4. SINCE ALL THE GROUNDS WERE NOT ADJUDICATED, WE D EEM IT FIT AND PROPER TO AMEND LAST LINE OF PARA NO.6 OF T HE ITAT ORDER AS UNDER: 6. HAVING REGARD TO RIVAL CONTENTIONS AND MATERIAL PLACED ON RECORD, WE FIND THAT THE DECISION OF ITAT WAS FOR A.Y. 2006-07 AND 2007-08, WHEREIN ITAT HAS OBSERVED AS UNDER: .. WE DEEM IT FIT AND PROPER TO REMAND THE ISSUE TO T HE FILE OF AO WITH A DIRECTION TO RE-CONSIDER ALL THE ISSUES AND ACCORDI NGLY ESTIMATE THE INCOME DE-NOVO. 5. IN THE RESULT, MA FILED BY THE REVENUE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST APRIL, 2021. SD/- SD/- (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER (P. MADHAVI DEVI) JUDICIAL MEMBER HYDERABAD, DATED 21 ST APRIL, 2021. VINODAN/SPS COPY TO: S.NO ADDRESS ES 1 J T. C OMMISSIONER OF I NCOME T AX (OSD) CIRCLE - 1 NELLORE 2 SRI ALLE BALA NAGI REDDY, D.NO.3/82, DHANNAWADA V ILLAGE, JAMMALAMADUGU (M) KADAPA 516432 3 ACIT, KADAPA RANGE, KADAPA 4 PR. CIT - KURNOOL 5 DR, ITAT HYDERABAD BEN CHES 6 GUARD FILE BY ORDER