ITO, Ward-15(1), Hyderabad, Hyderabad V. P.S. Vikram Prashanth, Hyderabad, Secunderabad

MA 92/HYD/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3833 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-01-2016
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 27-11-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 04-09-2015
• Court: TRIBUNAL
• Department Lawyers: B KURMI NAIDU
• Assessee Lawyers: A V RAGHURAM
• Keywords: Search and seizure; Peak credit; Additional evidence; Tax effect
• Section: 153A; 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH ES A , HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER M .A. NO. 9 2 /H YD /201 5 ( ARISING OUT OF ITA NO. 1 03 4/HYD/201 1 ) ASSESSMENT YEAR: 20 0 2 - 0 3 INCOME TAX OFFICER, WARD - 15(1) , HYDERABAD VS SRI P.S. VIKRAM PRASHANTH, SECUNDERABAD [PAN: A GMPP9704A ] (APPL IC ANT) (RESPONDENT) FOR REVENUE : SHRI B. KURMI NAIDU , DR FOR ASSESSEE : SHRI A.V. RAGHU RAM , AR DATE OF HEARING : 29 - 0 1 - 201 6 DATE OF PRO NOUNCEMENT : 29 - 01 - 201 6 O R D E R PER B. RAMAKOTAIAH, A.M. : THIS MISCELLANEOUS APPLICATION IS PREFERRED BY THE REVENUE APPREHENDING THAT THE ADMITTED TAX BY ASSESSEE MAY HAVE TO BE REFUNDED , WHICH IS IN VIOLATION OF LAW LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF SHELLY PRODUCTS [261 ITR 367] . 2. THE BRIEF FACTS ARE THAT THERE WERE SEARCH AND SEIZURE OPERATION S IN THE CASE OF ASSESSEE AND A NOTICE U/S. 153A OF THE INCOME TAX ACT [ACT] WAS ISSUED. ASSESSEE DID NOT COMPLY WITH THE M. A. NO. 92 / HYD / 201 5 : - 2 - : SAID NOTICE AND IN THE ABSENCE OF ANY EXPLANATION WITH REFERENCE TO THE DEPOSITS IN THE BANK ACCOUNT, ASSESSING OFFICER (AO) MADE THE ASSESSMENT BRINGING TO TAX THE PEAK CREDIT OF RS. 12,71,328/ - AS UN - EXPLAINED CASH CREDIT WITHIN THE MEANING OF SECTION 68 OF T HE ACT. SINCE ASSESSMENT WAS COMPLETED EX - PARTE U/S. 144 OF THE ACT, ASSESSEE FURNISHED ADDITIONAL EVIDENCE FOR THE SOURCES OF CASH DEPOSITS BEFORE THE LD. CIT(A) AND ALSO STATED THAT HE HAD FILED A RETURN ON 27 - 12 - 2007 I.E., BEFORE COMPLETING THE ASSESSM ENT DECLARING INCOME OF RS. 10,65,550/ - WHICH WAS NOT CONSIDERED BY THE AO WHILE COMPLETING THE ASSESSMENT. LD. CIT(A) CALLED FOR THE REMAND REPORT AND ALLOWED RELIEF BY DELETING THE ONLY ADDITION MADE IN ASSESSMENT, WHICH RESULTED IN DECLARING THE TOTAL INCOME AT NIL. LD. CIT(A), HOWEVER, DID NOT NOTICE THE RETURN OF INCOME FILED BY ASSESSEE. IN AN APPEAL BEFORE THE ITAT BY THE REVENUE, THE APPEAL WAS DISMISSED BY THE REVENUE AS NOT MAINTAINABLE ON THE BASIS OF THE TAX EFFECT INVOLVED IN THIS CASE , BE ING LESS THAN MONETARY LIMIT OF RS. 4 LAKHS FIXED BY THE CBDT . THE AO NOW APPREHENDS THAT ASSESSEE MAY ASK FOR REFUND ON THE ADMITTED TAX EVEN , HENCE THIS APPLICATION . 3. WE HAVE SPECIFICALLY ASKED THE REVENUE HOW THERE CAN BE A MISCELLANEOUS APPLICATION , WHEN THERE IS NO MISTAKE IN THE ORDER OF THE ITAT DISMISSING IT AS NOT MAINTAI NABLE. IN FACT, IF ANY MISTAKE HAS HAPPENED , IT COULD HAVE BEEN AT THE LEVEL OF CIT(A) BUT NOT BEFORE THE ITAT. HOWEVER, LD. DR SUBMITTED A REPORT FROM THE AO THAT ASSESSEE H AS ADMITTED THE TAXES BY FILING THE RETURN AND REVENUE ALS O ADJUSTED SOME OF THE SEIZED CASH TOWARDS THE CASH DEMAND IN THE YEAR 2008 ITSELF , WHICH WAS NOT YET REFUNDED. LD. COUNSEL FOR ASSESSEE SUBMITTED THAT ASSESSEE HAS NOT ASKED FOR THE REFUND OF THE TAX AND HE ADMITS THAT IN VIEW OF THE DECISION OF THE M. A. NO. 92 / HYD / 201 5 : - 3 - : HON'BLE SUPREME COURT IN THE CASE OF SHELLY PRODUCTS [261 ITR 367] (SUPRA), THE ADMITTED TAX CANNOT BE CLAIMED AS REFUND AND T O THAT EXTENT, REVENUES APPREHENSION IS NOT MAINTAINABLE. 4. SINCE THE LAW ON THIS POINT IS VERY CLEAR AND AS HON'BLE SUPREME COURT IN THE CASE OF SHELLY PRODUCTS [261 ITR 367] HAS HELD THAT FAILURE OR INABILITY TO FRAME ANOTHER ASSESSMENT AFTER THE EARLIER ASSESSMENT IS SET ASIDE OR NULLIFIED IN APPROPRIATE PROCEEDINGS DOES NO T ENTITLE THE ASSESSEE TO CLAIM REFUND OF ADVANCE TAX AND TAX PAID ON SELF - ASSESSMENT , BECAUSE TO THAT EXTENT THE ASSESSEE HAS ADMITTED HIS LIABILITY TO PAY TAX IN ACCORDANCE WITH THE LAW. IF THE ASSESSING AUTHORITY, ON AN EARLIER ASSESSMENT MADE BEING SE T ASIDE OR NULLIFIED IN APPROPRIATE PROCEEDINGS, CANNOT MAKE A FRESH ASSESSMENT, IT AMOUNT TO DEEMED ACCEPTANCE OF THE RETURN OF INCOME FURNISHED BY THE ASSESSEE. IN SUCH A CASE THE ASSESSING AUTHORITY IS DENUDED OF ITS AUTHORITY TO VERIFY THE CORRECTNESS AND COMPLETENESS OF THE RETURN, WHICH AUTHORITY IT HAS WHILE FRAMING A REGULAR ASSESSMENT. THE ASSESSING AUTHORITY MUST ACCEPT THE RETURN AS FURNISHED AND CANNOT IN ANY EVENT RAISE A DEMAND FOR PAYMENT OF FURTHER TAXES. ACCEPTING THE INCOME AS DISCLOSED INT EH RETURN FURNISHED BY THE ASSESSEE, IT MUST REFUND TO THE ASSESSEE ANY TAX PAID BY THE ASSESSEE IN EXCESS OF THE LIABILITY INCURRED BY HIM ON THE BASIS OF THE INCOME DISCLOSED. EVEN IF THE TAX PAID IS FOUND TO BE LESS THAN THAT PAYABLE, NO FURTHER D EMAND CAN BE MADE FOR RECOVERY OF THE BALANCE SINCE THE FRESH ASSESSMENT IS BARRED. ANY RETENTION OF THE B ALANCE MAY OFFEND ARTICLE 265, WE SEE NO REASON TO CONSIDER THE REVENUES APPREHENSIONS. IN FACT, THE AO SHOULD HAVE MENTIONED THAT ASSESSEE HAS ADM ITTED INCOME AND SHOULD HAVE M ADE ADDITIONS THEREON AT THE TIME OF ASSESSMENT. EVEN WHEN THE FACT WAS SUBMITTED BEFORE THE LD. CIT(A), HE ALSO DID NOT GIVE ANY DIRECTION TO THE AO , KEEPING THE ADMITTED INCOME IN MIND. BE THAT AS IT MAY, LAW ON THIS ISSUE BEING VERY CLEAR, AO IS BOUND TO REFUND ONLY THE EXCESS TAX COLLECTED BUT NOT THE ADMITTED TAX. A S NO M. A. NO. 92 / HYD / 201 5 : - 4 - : MISTAKE HAS HAPPENED BEFORE THIS FORUM, THE APPLICATION PREFERRED BY THE REVENUE IS NOT MAINTAINABLE. 5 . IN THE RESULT, MISCELLANEOUS APPLICATION IS DISMISSED , WITH THE ABOVE OBSERVATIONS. ORDER PRONOUNCED IN THE COURT ON 29 TH JANUARY, 201 6 ON COMPLETION OF HEARING. SD/ - SD/ - (P. MADHAVI DEVI) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDER ABAD, DATED 29 TH JANUARY, 2016 TNMM COPY TO : 1. INCOME TAX OFFICER, WARD - 15(1), ROOM NO. 124, 1 ST FLOOR, B - BLOCK, I.T. TOWERS, A.C. GUARDS, HYDERABAD. 2 . SRI P.S. VIKRAM PRASHANTH, 1 - 5 - 142/3, VASAVINAGAR COLONY, OLD A LWAL, SECUNDERABAD. 3 . CIT (APPEALS) - V I , HYDERABAD. 4. CIT - V , HYDERABAD. 5 . D.R. ITAT, HYDERABAD. 6 . GUARD FILE.