Smt T Hema Latha, Hyderabad v. The ITO, Ward-2,, Machilipatnam

ITA 204/VIZ/2007 | 2002-2003
Pronouncement Date: 04-03-2010 | Result: Allowed

Appeal Details

RSA Number 20425314 RSA 2007
Bench Visakhapatnam
Appeal Number ITA 204/VIZ/2007
Duration Of Justice 2 year(s) 9 month(s) 17 day(s)
Appellant Smt T Hema Latha, Hyderabad
Respondent The ITO, Ward-2,, Machilipatnam
Appeal Type Income Tax Appeal
Pronouncement Date 04-03-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 04-03-2010
Assessment Year 2002-2003
Appeal Filed On 17-05-2007
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI BR BASKARAN ACCOUNTANT MEMBER ITA NO.204/VIZAG/2007 ASSESSMENT YEAR : 2002-03 T. HEMALATHA PACHARLANKA ITO WARD-2 MACHILIPATNAM (APPELLANT) VS. (RESPONDENT) PANNO.ADHPT 0302L APPELLANT BY: SHRI S. RAMA RAO ADVOCATE RESPONDENT BY: SHRI SUBRATA SARKAR DR ORDER PER SHRI S.K. YADAV JUDICIAL MEMBER:- THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT PASSED U/S 263 OF THE INCOME TAX ACT ON VARIOUS GRO UND WHICH ARE AS UNDER:- 1. THE ORDER OF THE CIT IS ERRONEOUS BOTH ON FACTS AND IN LAW. 2. THE LD. CIT ERRED IN CANCELLING THE ORDER U/S 154 D ATED 8.9.2006 BY PASSING AN ORDER U/S 263 OF THE I.T. ACT. 3. THE LD. CIT ERRED IN HOLDING THAT THERE IS ANY ERRO R IN THE ORDER U/S 154 DATED 8.9.2006 PASSED BY THE ASSESSING OFFICER AND FURTHER ERRED IN HOLDING THAT THE ORDER U/S 154 DATED 8.9.2 006 IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. 4. THE LD. CIT ERRED IN MENTIONING THAT THE NOTICE U/S 148 WAS SERVED ON SRI K. NAGA BABU PARTNER OF M/S. SURESH & BABU CHARTERED ACCOUNTANTS AND FURTHER ERRED IN HOLDING THAT SUCH A NOTICE IS VALID. 5. THE LD. CIT ERRED IN HOLDING THAT THE ORDER U/S 143 (3) R.W.S. 147 PASSED ON 29.3.2006 IS WITHIN TIME. HE OUGHT TO HA VE SEEN THAT THE ASSESSMENT WAS BARRED BY LIMITATION AND THE ASS ESSING OFFICER RIGHTLY DELETED THE ENTIRE ADDITION MADE IN THE SAI D ORDER U/S 143(3) R.W.S. 147 BY PASSING AN ORDER U/S 154 DATED 8.9.20 06. THE LD. CIT OUGHT TO HAVE SEEN THAT THE ORDER U/S 154 PASSE D BY THE ASSESSING OFFICER IS WELL JUSTIFIED AND IS IN ACCOR DANCE WITH THE PROVISIONS OF THE ACT. 6. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME OF H EARING. 2 2. WE HAVE CAREFULLY PERUSED THE ORDER OF THE LOWER AUTHORITIES AND WE FIND THAT THE CIT HAS REVISED THE ORDER PASSED BY T HE A.O. U/S 154 OF THE I.T. ACT. BRIEFLY STATED THAT NOTICE U/S 148 OF THE ACT WAS ISSUED TO THE ASSESSEES ON 14.6.2004 AND THE SAME WAS SERVED ON 21 ST JUNE 2004 AND IN RESPONSE THERETO THE ASSESSEE FILED A LETTER DATED NIL REQU ESTING THE ASSESSING OFFICER TO TREAT THE RETURN FILED ON 8.1.2004 AS THE RETURN PURSUANT TO NOTICE U/S 148 OF THE ACT AND THEREAFTER THE ASSESSMENT WAS COMPLE TED U/S 143(3) READ WITH SECTION 147 ON 29.3.2006 DETERMINING THE TOTAL INCO ME AT RS.21 43 262/- AS AGAINST THE INCOME DECLARED AT NIL. 3. ON A PETITION FILED U/S 154 BY THE ASSESSEE THE ASSESSING OFFICER RECTIFIED HIS ORDER AND DELETED THE ENTIRE ADDITION S VIDE ITS ORDER DATED 29.3.2006 AFTER HAVING OBSERVED THAT THE EARLIER OR DER PASSED U/S 143(3) READ WITH SECTION 147 ON 29.3.2006 WAS BARRED BY LIMITAT ION. 4. THE CIT ACCORDINGLY OBSERVED THE ORDER OF THE A. O. U/S 154 WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E AND HE CANCELLED THE SAME AND DIRECTED THE A.O. TO PASS A NECESSARY ORDE R TO BRING BACK TO TAX THE ENTIRE ADDITION AMOUNTING TO RS.21 43 262/-. 5. NOW THE ASSESSEE IS BEFORE US AND DURING THE COU RSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENT ION TO THE ORIGINAL NOTICE ISSUED U/S 148 OF THE ACT ON 9.12.2003. COPY OF SA ME IS AVAILABLE AT PAGE 2 OF THE COMPILATION OF THE ASSESSEE. IN RESPONSE TO THIS NOTICE U/S 148 ASSESSEE FILED ITS RETURN OF INCOME ON 8.1.2004 CO PY OF THE SAME IS PLACED AT PG.NO.1 OF THE COMPILATION. THEREAFTER NOTICE U/S 143(2) WAS ISSUED BY THE A.O. ON 16.6.2004 IN WHICH THE REFERENCE OF THIS RE TURN FILED BY THE ASSESSEES ON 8.1.2004 WAS MADE. HE HAS ALSO INVITED OUR ATTE NTION TO THE ASSESSMENT ORDER APPEARING AT PG.NO.5 TO 7 OF THE COMPILATION OF THE ASSESSEES WITH THE SUBMISSION THAT IN THE FIRST PARA THE A.O. HAS MEN TIONED THAT NOTICE U/S 148 WAS ISSUED ON 9.12.2003 CALLING FOR THE RETURN AND IN RESPONSE THERETO RETURN WAS FILED ADMITTING NIL INCOME ON 8.1.2004. AS PER PROVISIONS OF SECTION 153(1B) AND 153(2) ASSESSMENT IS TO BE COMPLETED WI THIN A ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN I S FILED. SINCE THE RETURN WAS 3 FILED ON 8.1.2004 THE ASSESSMENT IS REQUIRED TO BE COMPLETED BY 31.3.2005. BUT THE ASSESSMENT WAS COMPLETED ON 29.3.2006 WHICH IS BEYOND THE PERIOD OF LIMITATION. WHEN THESE FACTS WERE BROUGHT TO TH E NOTICE OF THE ASSESSING OFFICER HE IMMEDIATELY RECTIFIED HIS ORDER AND ASS ESSED THE INCOME AT NIL. THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO INVITED O UR ATTENTION TO THE APPLICATION FILED U/S 154 OF THE ACT AS SAME IS AVA ILABLE AT PG. 16 & 17 OF THE COMPILATION OF THE ASSESSEE. HE FURTHER CONTENDED THAT SINCE THE ASSESSING OFFICER HAS REALIZED ITS MISTAKE IN THE ASSESSMENT ORDER HE IMMEDIATELY RECTIFIED THE SAME AND HELD THAT THE ORDER OF THE A SSESSING OFFICER ORIGINALLY PASSED U/S 143(3) READ WITH SECTION 147 OF THE I.T. ACT IS BARRED BY LIMITATION. THUS THE ASSESSING OFFICER HAS RIGHTLY RECTIFIED HIS MISTAKE AND ASSESSED THE INCOME AT NIL AS DECLARED BY THE ASSES SEE. 6. THE LD. D.R. ON THE OTHER HAND HAS PLACED A HEAV Y RELIANCE UPON THE ORDER OF THE CIT. 7. HAVING GONE THROUGH THE MATERIAL AVAILABLE ON RE CORD AND IN THE LIGHT OF RIVAL SUBMISSIONS WE FIND FORCE IN THE CONTENTI ON OF THE ASSESSEES. THOUGH THE CIT HAS MENTIONED IN PARA NO.2 OF ITS OR DER THAT NOTICE U/S 148 WAS ISSUED TO THE ASSESSEE ON 14.6.2004 BUT THE DOC UMENT AVAILABLE AT PG.NO.2 OF THE COMPILATION OF THE ASSESSEE CLEARLY EVIDENCED THAT IT IS A NOTICE U/S 148 WHICH WAS ISSUED ON 9.12.2003. IN RESPONSE TO THIS NOTICE A RETURN WAS FILED ON 8.1.2004 AND THIS WAS ACKNOWLEDGED BY THE A.O. THROUGH ITS NOTICE U/S 143(2) DATED 16.6.2004. ALL THESE FACTS ARE MENTIONED IN THE ASSESSMENT ORDER ORIGINALLY PASSED BY THE A.O. U/S 143(3) READ WITH 147 OF THE I.T. ACT. IN THE LIGHT OF THESE FACTS THE OBS ERVATION OF THE CIT THAT THE NOTICE U/S 148 WAS ISSUED ON 14.6.2004 ARE INCORREC T AND IF THE FIRST NOTICE ISSUED U/S 148 IS TO BE CONSIDERED AS ISSUED ON 9.1 2.2003 IN WHICH RESPONSE THE RETURN WAS FILED ON 8.1.2004 THE ASSESSMENT WA S REQUIRED TO BE COMPLETED BY 31 ST MARCH 2005 BUT IT WAS NOT DONE. THE ASSESSMENT W AS FRAMED ON 29.3.2006 AND WHEN THIS MISTAKE WAS REALI ZED BY THE A.O. ON PROPER APPLICATION FILED U/S 154 BY THE ASSESSEES HE IMMEDIATELY RECTIFIED HIS MISTAKE AND DELETED THE ADDITIONS AND ASSESSED THE ASSESSEE AT THE DECLARED INCOME AT NIL. WE DO NOT FIND ANY INFIRMITY IN THE ACTION OF THE A.O. SINCE 4 THE ACTION OF THE A.O. IS IN ACCORDANCE WITH THE LA W ITS ORDER CANNOT BE CALLED TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. WE THEREFORE FIND NO MERIT IN THE ORDER OF THE CIT AND ACCORDING LY WE SET ASIDE HIS ORDER. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED. PRONOUNCE D IN THE OPEN COURT ON 04.03.2010 SD/- SD/- (BR BASKARAN) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM DATED 04 TH MARCH 2010 COPY TO 1 SRI S. RAMA RAO ADVOCATE FLAT NO.103 H.NO.3-6- 542/4 INDIRADEVI NILAYAM ST.NO.7 HIMAYATNAGAR HYDERABAD-500 029. 2 CIT VIJAYAWADA 3 THE CIT(A) VIJAYAWADA 4 THE DR ITAT VISAKHAPATNAM. 5 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM