RAJAIAH KRISHNA MURTHY,HYDERABAD vs. INCOME TAX OFFICER, WARD-5(2), HYDERABAD

THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH “B”, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER ITA No. 82/Hyd/2018 Assessment Year: 2009-10 Rajaiah Krishna Murthy, vs. Income-tax Officer, Hyderabad. Ward – 5(2), Hyderabad. PAN – AAUPN 7745 H (Appellant) (Respondent) Assessee by : None Revenue by : Smt. M. Narmada Date of hearing : 23-10-2018 Date of pronouncement : 31-10-2018

O R D E R PER S. RIFAUR RAHMAN, A.M.: This appeal of the assessee is directed against the order of CIT(A) – 4, Hyderabad, dated 21/09/2017 for AY 2009-10. 2. Initially, this appeal was fixed for hearing on 09/03/2018 and at the request of the ld. AR of the assessee, the case was adjourned to 20/06/2018. Since none appeared on behalf of the assessee on 20/06/2018, the case was adjourned to 23/10/2018. On 23/10/2018, none appeared on behalf of the assessee nor there is a request for adjournment of the case. In these circumstances, we are of the view that the assessee is not interested in prosecuting its appeal. It has been held by the Hon’ble Supreme Court in the case of B.N. Bhttachargee & Anr., 118 ITR 461 that appeal does not mean only filing of memo of appeal but also pursuing it effectively. In cases where the assessee does not want to pursue the appeal, Court/Tribunal have inherent power to dismiss the appeal for non- prosecution as held by Hon’ble High court of Mumbai in the case of M/s Chemipol Vs. Union of India in Excise appeal No. 62 of 2009.

2 ITA No. 82 /Hyd/2018 Rajaiah Krishna Murthy, Hyd. Therefore, respectfully following the decision of the Tribunal in the case of Multiplan (India) Ltd., (38 ITD 320) and Madhya Pradesh High Court in Late Tukojirao Holkar (223 ITR 480), we dismiss this appeal of the assessee for want of prosecution.

3.1 The CIT-4, Hyderabad had noticed that the order passed u/s 143(3) is erroneous and prejudicial to the interests of revenue and invoked proceedings u/s 263 of the Act. In the order u/s 263, the CIT noted that the assessee is not the owner of the property under consideration but has received Rs. 1 crore from M/s Team One Builders as per the receipt issued by the assessee to M/s Team One Builders along with his three brothers. Thus, 1 crore received by the assessee from the developer cannot be assessed under capital gain and no deduction u/s 54F and 54EC are allowable. The amount of Rs. 1 crore received is to be assessed under the head ‘income from other sources.’

3.2 Accordingly, the AO completed the assessment u/s 143(3) rws 263 by treating Rs. 1 crore received from M/s Team one Builders as ‘income from other sources’

3.3 Aggrieved, the assessee preferred an appeal before the CIT(A), who upheld the asst. order. Against this order, the assessee filed an appeal before the Tribunal and the Tribunal dismissed the appeal of the assessee.

3.4 Thereafter, the AO initiated penalty proceedings u/s 271(1)(c) of the Act on the ground that the assessee has concealed the particulars of his income/furnished inaccurate particulars of income and levied a minimum penalty, on the amount sought to be evaded,

3 ITA No. 82 /Hyd/2018 Rajaiah Krishna Murthy, Hyd. worked out to Rs. 33,78,564/- u/s 271(1)(c). When the assessee appealed before the CIT(A) against the said penalty order, the CIT(A) confirmed the same.

Sd/- Sd/- (P. MADHAVI DEVI) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Hyderabad, Dated: 31st October, 2018. kv

Copy to:- 1) Shri Rajaiah Krishna Murthy, 5-2-1028, M.J. Market, Hyderabad. 2) ITO, Ward – 5(2), Hyd. 3) CIT(A) – 4, Hyderabad. 4) Pr. CIT – 4, Hyd. 5) The Departmental Representative, I.T.A.T., Hyderabad. 6) Guard File