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Facts
The assessee, a non-resident individual, had her assessment reopened for AYs 2013-14 and 2014-15 based on information from a search and seizure operation. The Assessing Officer made additions, which were upheld by the CIT(A). The assessee appealed to the ITAT.
Held
The Tribunal held that the assessment orders were passed beyond the time limit prescribed under Section 153(2) of the Income Tax Act, as the extended time limit under Section 153(4) was not applicable to non-residents in the absence of a reference to the TPO. Therefore, the assessment orders were quashed.
Key Issues
Whether the assessment orders passed by the Assessing Officer were barred by limitation, considering the provisions of Section 153 of the Income Tax Act, especially for non-resident assessees.
Sections Cited
147, 148, 132, 143(2), 142(1), 144, 69, 153(2), 92CA, 153(4), 144C, 271(1)(c)
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Income Tax Appellate Tribunal, HYDERABAD “A” BENCH : HYDERABAD
Before: SHRI VIJAY PAL RAO & SHRI G. MANJUNATHA
ORDER PER BENCH : These four appeals filed by the assessee viz., Smt. Maliha Syeda [Non-Resident] against the respective orders of the learned CIT(A)-10, Hyderabad, relating to the
2 ITA.Nos.833, 834, 823 & 824/Hyd./2024 assessment year 2013-2014 and 2014-2015. Since common issues are involved in all these appeals, these appeals were heard together and are being disposed of by this single consolidated order for the sake of convenience and brevity. We, therefore, take-up ITA.No.833/Hyd./2024 for the assessment year 2013-2014 as “lead” appeal. Both the parties agreed that the decision taken in ITA.No.833/Hyd./ 2024 be applicable to the appeal ITA.No.834/Hyd./2024.
ITA.No.833/Hyd./2024 – A.Y. 2013-2014 :
Facts of the case, in brief, are that the assessee is a non-resident individual and had filed the return of income on 25.08.2015 declaring income of Rs.4,069/-. In this case, information was received from DDIT (Inv.), Unit-II(3), Hyderabad that a search and seizure operation u/sec.132 of the Act was conducted in the case of M/s. Skill Promoters Pvt. Ltd., on 22.10.2019 and certain incriminating documents i.e., excel sheets were found that the assessee Smt. Maliha Syeda had entered into an agreement with M/s. Skill Promoters Pvt. Ltd., for purchase commercial space for a total consideration of Rs.37 lakhs and that an 3 ITA.Nos.833, 834, 823 & 824/Hyd./2024 amount of Rs.17.50 lakhs was paid through cheques and Rs.19.50 lakhs was paid in cash over and above the registered value to the builder M/s. Skill Promoters Pvt. Ltd. During the impugned assessment year 2014-2015 the assessee has paid an amount of Rs.8 lakhs by way of cash and the sources for the same have to be ascertained from the assessee. On perusal of the return of income, the Assessing Officer noted that the assessee had not offered true income in the return of income and the sources for the above sum of Rs.8 lakhs paid in cash are not explained. Therefore, the Assessing Officer reopened the assessment u/sec.147 by taking necessary approval from the CIT-(IT), Hyderabad and notice u/sec.148 was issued to the assessee on 29.03.2021 and served upon the assessee through mail. In response to the notice issued u/sec.148, the assessee filed return of income on 26.04.2021 declaring income of Rs.4,069/- towards income from other sources. The Assessing Officer also issued statutory notices u/sec.143(2) and 142(1). In response to the said notices, the assessee filed her reply. However, the Assessing Officer had not 4 ITA.Nos.833, 834, 823 & 824/Hyd./2024 satisfied with the submissions of the assessee and made the impugned addition of Rs.8 lakhs in absence of any verifiable documentary evidences and assessed the total income of the assessee at Rs.8,04,069/- u/sec.147 r.w.s.144 of the Income Tax Act, 1961 vide order dated 25.05.2022.
3. On being aggrieved, the assessee carried the matter in appeal before the learned CIT(A) and the learned CIT(A) sustained the addition made by the Assessing Officer.
4. Aggrieved by the order of the learned CIT(A), the assessee carried the matter in appeal before the Tribunal and has raised the following additional grounds under Rule 11 of the ITAT Rules, 1963 :
1. “The Appellant has filed the present appeal challenging the addition of Rs.8,00,000 made by the AO as alleged unexplained investment (on-money) under sections 69 of the Income Tax Act, 1961 (henceforth "the Act") and sustained by the Id. CIT(A). In the present case, the notice under section 148 of the Act reopening the assessment was issued on 29.03.2021. There is no reference under section 92CA of the Act in respect of any international transaction. In view of the above, the limitation to pass assessment order as per Proviso to section 153(2) of the Act is ONE YEAR from the end of the financial year in which the notice under section 148 of the Act was issued. Such time limit to pass asst. order ends by 31.03.2022. However, the assessment 5 ITA.Nos.833, 834, 823 & 824/Hyd./2024 order is passed on 25.05.2022, which is barred by limitation. The Appellant inadvertently did not notice the above legal issue and therefore could not raise the above before the authorities below.
2. The Appellant submits that the limitation as prescribed under section 153(2) of the Act for passing an assessment under pursuant to reopening of an assessment is ONE YEAR from the end of the financial year in which the assessment is reopened. It is submitted that 153(4) extends the said time-limit by another 12 months notwithstanding anything contained in sub-ss. (1), (1A), (2), (3) and (3A) where a reference under section 92CA(1) of the Act is made during the assessment proceedings to the 'TPO. It is submitted that the except the cases where there is a reference to the TPO, the extended time-limit of 12 months for completion of assessment is not available even in a case of non- resident assessment, even though the said assessment proceedings are covered under s.144C of the Act.
It is submitted that in the present case, the AO has reopened the assessment vide notice dated 29.03.2021 issued under section 148 of the Act. The asst. order is passed on 25.05.2022. Therefore, the assessment order passed is barred by limitation as per provisions of section 153(2) of the Act.
The Appellant with the leave of the Hon'ble Tribunal desires to raise the following additional ground : The assessment order dated 25.05.2021 passed by the Assessing Officer under section 147 r.w.s. 144C(3) of the Income Tax Act is barred by limitation and non est in law, as the same is passed beyond the period of ONE YEAR from the end of the financial year in which the notice under section 148 of the Act was issued.
5. It is respectfully submitted that the above ground is purely a legal ground and does not call for fresh investigation into facts. The Appellant in this regard relies on the judgment of Hon'ble Supreme Court in the 6 ITA.Nos.833, 834, 823 & 824/Hyd./2024 case of NTPC Ltd vs. CIT reported in (1998) 229 ITR 383 (SC) wherein it was held that the legal ground can be taken at any stage of proceedings. It is prayed that the Hon'ble Tribunal may kindly admit the additional ground raised and adjudicate the same on merits, and pass such other order (s) as the Hon'ble Tribunal deems fit and proper in the interest of justice.”
During the course of hearing, Learned Counsel for the Assessee submitted that the additional grounds raised by the assessee are purely legal in nature which goes to the root of the matter and, therefore, the same be filed any time including the proceedings before the Tribunal. He accordingly submitted in light of decision of Hon’ble Supreme Court in the case of National Thermal Power Co. Ltd., vs. CIT [1998] 229 ITR 383 (SC) and pleaded that the additional grounds be admitted.
The learned DR, on the other hand, opposed for admission of the additional grounds.
After considering the rival submissions of both the sides and considering the petition filed for admission of the additional grounds, we find that the additional grounds raised
by the assessee are purely legal in nature and 7. ITA.Nos.833, 834, 823 & 824/Hyd./2024 challenges the assessment order passed by the Assessing Officer on limitation in light of sec.153(2) of the Act. Therefore, respectfully following the decision of Hon’ble Supreme Court in the case of National Thermal Power Co. Ltd., vs. CIT (supra), we admit the additional grounds raised by the assessee in the instant appeal and proceed to adjudicate the same on merits.
Learned Counsel for the Assessee submitted that that the instant additional grounds raised
by the assessee are squarely covered by the order of the ITAT, Hyderabad B- Bench, Hyderabad in the case of Shri Mir Ibrahim Ali, R/o.USA vs. The ACIT, Intl. Taxation-1, Hyderabad in ITA.Nos.69 and 91/Hyd./2024 and ITA.Nos.92 and 93/Hyd./2024 dated 29.11.2024 wherein the Tribunal held the extended period of 12 months is not available in the case of Non-Resident as per sec.153(4) of the Act and, therefore, the Assessing Officer has to complete the assessment as per the provisions of sec.153(2) of the Act which is one year from the end of financial year in which notice u/sec.148 was served. Since in the instant appeal the 8. ITA.Nos.833, 834, 823 & 824/Hyd./2024 Assessing Officer issued notice u/sec.148 Act on 29.03.2021 and the assessment has to be completed by 31.03.2022, whereas, the Assessing Officer has passed assessment order dated 25.05.2022 u/sec.147 r.w.s.144 of the Act. Learned Counsel for the Assessee further submitted that for the A.Y. 2014-2015 [ITA.No.834/Hyd./2024], the Assessing Officer issued notice u/sec.148 of the Act on 29.03.2021 and the assessment has to be completed by 31.03.2022 and the Assessing Officer passed assessment order for the impugned A.Y. 2014-2015 on 25.05.2022 u/sec.147 r.w.s.144 of the Act on identical grounds. He, accordingly, pleaded that the assessment order passed by the Assessing Officer is barred by limitation and is liable to be quashed for both the impugned assessment years i.e., 2013-2014 and 2014-2015.
The learned DR, on the other hand, fairly agreed that the grounds raised in the instant appeal are squarely covered by the decision of Coordinate Bench of Hyderabad Tribunal in the case of Shri Mir Ibrahim Ali, R/o. USA vs. ACIT, Intl. Taxation-1, Hyderabd (supra). However, he
9 ITA.Nos.833, 834, 823 & 824/Hyd./2024 strongly submitted that since the assessee is an “eligible assessee” in terms of sec.144C(15) of the Act, the Assessing Officer has passed draft assessment order u/sec.144C(1) and allowed the assessee to file objections, if any, before the Disputes Resolution Panel [“DRP”] and since the assessee has not filed her objections within the prescribed time, the final assessment order passed by the Assessing Officer is valid and well within the time limit prescribed u/sec.153(4) of the Act. Therefore, he submitted that there is no merit in the legal grounds agitated by the assessee before the Tribunal and the same needs to be rejected.
10. We have heard the rival submissions of both the parties, orders of the authorities below and perused the material on record. We find that admittedly there is no dispute between the parties that the assessee is a non- resident individual for the A.Ys. 2013-2014 and 2014-2015. The Assessing Officer issued notice/sec.148 of the Act on 29.03.2021 and completed the assessment u/sec.147 of the Act vide order dated 25.05.2022 for the impugned assessment year. We find that prima facie there is a force in the arguments advanced by 10 ITA.Nos.833, 834, 823 & 824/Hyd./2024 the assessee that the since the extended time limit of 12 months is not available in the case of Non-Resident as per sec.153(4) of the Act, the Assessing Officer ought to have complete the assessment as per the provisions of sec.153(2) of the Act which is one year from the end of the financial year in which notice u/sec.148 was served. Since in the case of the assessee who is a Non-Resident during the impugned A.Ys. 2013-2014 and 2014- 2015, the Assessing Officer has completed the assessment on 25.05.2022 beyond the period of one year from the end of the financial year in which notice issued u/sec.148 dated 29.03.2021, therefore, the assessment order passed by the Assessing Officer cannot be sustainable in the eye of law.
11. On identical facts and circumstances, in the case of Shri Mir Ibrahim Ali, R/o.USA vs. ACIT, Intl. Taxation-1, Hyderabad (supra), the Tribunal has quashed the assessment vide order dated 29.11.2024 and the relevant observations of the Tribunal are as under :
“16. We have heard both the parties, perused the material available on record and gone through the orders of the authorities below. The assessee is a non- resident individual for the A.Y 2016-17 and is an eligible assessee as per section 144C(15)(b) of the I.T. Act, 1961. As per section 144C of the Act, the 11 ITA.Nos.833, 834, 823 & 824/Hyd./2024 assessment of an eligible assessee shall be dealt with in accordance with the said provision. As per the provision of section 144C, in case of an eligible assessee, the Assessing Officer shall pass a draft assessment order and served on the assessee, if he proposes to make any variation in his total income. The assessee, after receipt of draft assessment order shall have two options. As per sub section (2) of section 144C, on receipt of draft assessment order, the eligible assessee shall within 30 days file its acceptance of the variations to the Assessing Officer or file his objection, if any, to such variation with the DRP. If the eligible assessee file his acceptance to the Assessing Officer, then the Assessing Officer shall complete the assessment within one month from the end of the month in which the acceptance is received. In case an eligible assessee files objection before the DRP, then the DRP shall issue its direction within 9 months from the end of the month in which the draft order is forwarded to the assessee. Thereafter, the Assessing Officer shall pass his final assessment order within one month from the end of the month in which such direction is received.
In the present case, there is no dispute with regard to the fact that the appellant has filed his objection against the draft assessment order passed by the Assessing Officer before the DRP. Therefore, in ordinary course, the extended time limit for completion of the assessment should be available to the Assessing Officer as per section 147 r.w.s. 144C(13) of the I.T. Act, 1961. But the argument of the learned Counsel for the assessee is that as per section 153(4) of the Act, the extended period of 12 months for completion of assessment is available only where a reference under sub section (1) of section 92CA is made during the course of the assessment or re-assessment, but not in a case where there is no reference to the TPO. We find force in the argument of the learned Counsel for the assessee for the simple reason that, as per section 153(2), the time limit for completion of assessment or re- 12 ITA.Nos.833, 834, 823 & 824/Hyd./2024 assessment shall be 12 months from the end of the financial year in which notice u/s 148 was served. However, sub-section (4) of section 153 extends the said time limit by another 12 months notwithstanding anything contained in sub-section (1), (1A), (2), (3) and (3A) where a reference u/s 92CA)(1) is made during the assessment proceedings to the TPO. In other words, except in a cases of reference to the TPO, extended time limit of 12 months for completion of assessment is not available even in a case of Non-Resident assessment, even though the said assessment proceedings is covered u/s 144C of the Act. Since the extended time limit of 12 months is not available in the case of Non- Resident as per section 153(4) of the Act, in our considered view, the Assessing Officer ought to have completed the assessment as per the provisions of section 153(2) of the Act which is one year from the end of the financial year in which notice u/s 148 was served. In the present case, if we go by date of notice issued u/s 148 of the Act i.e. 29.03.2021 and probable service in the month of April, 2021, the time limit for completing the assessment u/s 147 was available up to 31.03.2023 and thus, the final assessment order passed by the Assessing Officer u/s 147 r.w.s. 144C(13) dated 08.01.2024 is clearly barred by limitation.
The assessee has relied upon the decision of ITAT, Hyderabad Bench in the case of Syed Gulam Mohiuddin (supra), wherein the Coordinate Bench of the Tribunal has considered an identical issue and after considering relevant facts, has held as under :
“8. We have heard both the parties, perused the material available on record and gone through the orders of the authorities below. The assessee is a non-resident individual for the A.Y 2017-18 and is an eligible assessee as per section 144C(15) of the I.T. Act, 1961. As per section 144C of the Act, the 13 ITA.Nos.833, 834, 823 & 824/Hyd./2024 assessment of an eligible assessee shall be dealt with in accordance with the said provision. As per the provision of section 144C, in case of an eligible assessee, the Assessing Officer shall pass a draft assessment order and served on the assessee, if he propose to make any variation in his total income. The assessee, after receipt of draft assessment order shall have two options. As per sub section (2) of section 144C, on receipt of draft assessment order, the eligible assessee shall within 30 days file its acceptance of the variations to the Assessing Officer or file his objection, if any, to such variation with the DRP. If the eligible assessee file his acceptance to the Assessing Officer, then the Assessing Officer shall complete the assessment within one month from the end of the month in which the acceptance is received. In case an eligible assessee files objection before the DRP, then the DRP shall issue its direction within 9 months from the end of the month in which the draft order is forwarded to the assessee. Thereafter, the Assessing Officer shall pass his final assessment order within one month from the end of the month in which such direction is received.
9. In the present case, there is no dispute with regard to the fact that the appellant has filed his objection against the draft assessment order passed by the Assessing Officer before the DRP. Therefore, in ordinary course, the extended time limit for completion of the assessment should be available to the Assessing Officer as per section 144C r.w.s. 153C of the I.T. Act, 1961. But, the argument of the learned Counsel for the assessee is that as per section 153(4) of the Act, the extended period of 12 months for completion of assessment is available only where a reference under sub section (1) of section 92CA is made 14 ITA.Nos.833, 834, 823 & 824/Hyd./2024 during the course of the assessment or re- assessment, but not in a case where there is no reference to the TPO. We find force in the argument of the learned Counsel for the assessee for the simple reason that, as per section 153(2), the time limit for completion of assessment or re- assessment shall be 12 months from the end of the financial year in which notice u/s 148 was served. However, sub-section (4) of section 153 extends the said time limit by another 12 months notwithstanding anything contained in sub- section (1), (1A), (2), (3) and (3A) where a reference u/s 92CA)(1) is made during the assessement proceedings to the TPO. In other words, except the cases of the reference to the TPO, extended time limit of 12 months for completion of assessment is not available even in a case of Non-Resident assessment, even though the said assessement proceedings is covered u/s 144C of the Act. Since the extended time limit of 12 months is not available in the case of Non- Resident as per section 153(4) of the Act, in our considered view, the Assessing Officer ought to have completed the assessment as per the provisions of section 153(2) of the Act which is one year from the end of the financial year in which notice u/s 148 was served. In the present case, if we go by date of notice issued u/s 148 of the Act i.e. 30.03.2021, the time limit for completing the assessment u/s 147 was available up to 31/03/2022 and thus, the final assessment order passed by the Assessing Officer u/s 144 r.w.s. 144C dated 12.01.2023 is clearly barred by limitation.
This proposition is covered by the decision of the Hyderabad Bench of the Tribunal in the case of Shri Farooq Ali vs. Income Tax Officer in order dated 10/04/2024. The relevant findings of the Tribunal are as under:
15 ITA.Nos.833, 834, 823 & 824/Hyd./2024
“23. We have heard the rival arguments made by both the sides, perused the orders of the AO and the learned DRP and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us by both sides. We find the AO in the instant case made addition of Rs.2,55,75,000/- u/s 69 of the I.T. Act on the ground that as per the sale deed, the assessee had paid total sale consideration of Rs.2,55,75,000/-on 5.10.2016 to the vendors by way of cash, that the vendors have admitted and acknowledged the same and the assessee could not explain the source of such payment made for purchase of the immovable property. While doing so, he further held that the sale deed in itself is conclusive evidence and the contents of the same could not be proved further and a civil suit filed by the 3rd party claiming the title to the said property after the registration of sale deed between the assessee and the vendors will not negate the contents of the sale deed. 23.1. It is the submission of the learned Counsel for the assessee that the assessment order passed by the Assessing Officer is barred by limitation. It is also his submission that the assessee being an NRI and settled in UAE does not have any economic activities in India, therefore, there cannot be any addition of unexplained investment in the hands of the assessee as these falls under article 22 of Indo-UAE DTAA which makes such income taxable in the country of residence i.e. UAE unless these investments are 16 ITA.Nos.833, 834, 823 & 824/Hyd./2024 proved to be made out of income generated in India.
We find some merit in the above argument of the learned Counsel for the assessee. A perusal of the record shows that the notice u/s 148 was issued on 24.2.2021, a fact not disputed by the Revenue. There is no reference made to the TPO for making any adjustment of arm’s length price of the international taxation. We find the provisions of section 153(2) read as under: “153. Time limit for completion of assessment, reassessment and re- computation. (1) No order of assessment shall be made under section 143 or section 144 at any time after the expiry of twenty-one months from the end of the assessment year in which the income was first assessable: Provided that in respect of an order of assessment relating to the assessment year commencing on the 1st day of April, 2018, the provisions of this sub-section shall have effect, as if for the words "twenty-one months", the words "eighteen months" had been substituted: [Provided further that in respect of an order of assessment relating to the assessment year commencing on the— (i) 1st day of April, 2019, the provisions of this sub-section shall have effect, as if for the words "twenty-one months", the words "twelve months" had been substituted; 17 ITA.Nos.833, 834, 823 & 824/Hyd./2024 (ii) 1st day of April, 2020, the provisions of this sub-section shall have effect, as if for the words "twenty-one months", the words "eighteen months" had been substituted: Provided also that in respect of an order of assessment relating to the assessment year commencing on or after the 1st day of April, 2021, the provisions of this sub- section shall have effect, as if for the words "twenty-one months", the words "nine months" had been substituted.] (1A) Notwithstanding anything contained in sub-section (1), where a return under sub-section (8A) of section 139 is furnished, an order of assessment under section 143 or section 144 may be made at any time before the expiry of nine months from the end of the financial year in which such return was furnished.] (2) No order of assessment, reassessment or re-computation shall be made under section 147 after the expiry of nine months from the end of the financial year in which the notice under section 148 was served: Provided that where the notice under section 148 is served on or after the 1st day of April, 2019, the provisions of this sub-section shall have effect, as if for the words "nine months", the words "twelve months" had been substituted.”
Thus, a perusal of the above provision clearly shows that the time limit for completion of the assessment in the present case lapses on 31.3.2022.
18 ITA.Nos.833, 834, 823 & 824/Hyd./2024 However, the final assessment order u/s 144 r.w.s. 144C has been passed on 30.01.2023 which is beyond the time limit prescribed u/s 153(2). Since the assessment order has been passed on 30.01.2023 as against 31.03.2022, therefore, the same, in our opinion, is barred by limitation and accordingly, the assessment order is liable to be quashed. We therefore, quash the re-assessement proceedings being barred by limitation. Since the assessee succeeds on this preliminary legal issue, the other grounds become academic in nature and therefore, are not being adjudicated. “
In this view of the matter and considering the facts and circumstances and also by following the decision of the Hyderabad Bench of the Tribunal in the case of Farooq Ali vs. Income Tax Officer (Supra), we are of the considered view that the assessment order passed by the Assessing Officer u/s 144 r.w.s. 144C(13) dated 12.01.2023 is barred by limitation and thus we quash the re- assessment order passed by the Assessing Officer.”
In this view of the matter and considering the facts and circumstances of the case, and also by following the decision of ITAT Hyderabad Bench in the case of Syed Gulam Mohiuddin Vs. ITO, International Taxation – 1 (supra), we are of the considered view that the final assessment order passed by the AO under Section 147 read with Section 144C(13) dated 08.01.2024 is barred by limitation and is liable to be quashed and thus, we quash the re-assessment order passed by the Assessing Officer u/s 147 r.w.s. 144C(13) of the Act dt.08.01.2024 for the A.Y. 2016-17.
19 ITA.Nos.833, 834, 823 & 824/Hyd./2024 11.1. Since the additional grounds raised by the assessee in the instant appeal are squarely covered by the aforesaid decision of the Hyderabad Tribunal in the case of Shri Mir Ibrahim Ali, r/o. USA (supra), and in absence of any contrary material brought to the notice of Bench by the learned DR, we quash the assessment order passed by the Assessing Officer and allow the additional grounds raised by the assessee. Accordingly, the “lead” appeal of the assessee ITA.No.833/Hyd./2024 for the assessment year 2013-2014 is allowed.
Same order to follow in ITA.No.834/Hyd./2024 for the assessment year 2014-2015. Accordingly, ITA.No.834/Hyd./ 2024 of the assessee is allowed.
Coming back to the assessee’s appeals for the assessment years 2013-2014 and 2014-2015 in ITA.Nos.823 & 824/Hyd./2024, the Assessing Officer levied the penalty u/sec.271(1)(c) of the Act for these assessment years in the hands of the assessee on account of concealment of particulars of income.
We note that since we have allowed the quantum appeals [ITA.Nos.833 & 834/Hyd./2024] filed by the assessee hereinabove, the appeals ITA.Nos.823 & 824/Hyd./2024 filed by 20 ITA.Nos.833, 834, 823 & 824/Hyd./2024 the assessee challenging the penalty orders both dated 01.02.2023 passed by the Assessing Officer levying penalty @ 100% at Rs.51,500/- and Rs.2,47,200/- for the impugned assessment years 2013-2014 and 2014-2015 are cancelled. Accordingly, both the appeals of the assessee ITA.Nos.823 & 824 Hyd./2024 are allowed.
Delay of 01 day in filing the instant appeals ITA.Nos.833 & 834/Hyd./2024 are condoned in light of assessee’s affidavit explaining reasons therein to condone the delay in the interest of substantial justice.
To sum-up, all the four appeals filed by the assessee ITA.Nos.833 & 834/Hyd./2024 And ITA.Nos.823 & 824/Hyd./ 2024 are allowed. A copy of this common order be placed in the respective case files.