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Income Tax Appellate Tribunal, VISAKHAPATNAM BENCH, VISAKHAPATNAM
Before: SHRI V. DURGA RAO & SHRI D.S. SUNDER SINGH
PER Bench:
These appeals filed by different assessees are directed
against orders of the Commissioner of Income Tax (Appeals)-3
{CIT(A)}, Visakhapatnam vide nos.127, 128, 129, 133 & 134/2015-
16/CIT(A)-3/VSP/2017-18 dated 19.4.2017 for the assessment years
2006-07 to 2009-10. Since, the facts are identical and issues are
common, they are clubbed, heard together and disposed-off by way of this common order for the sake of convenience.
A search and seizure operation was conducted u/s 132 of the Act
in the case of Sri N.S.N. Reddy and in the premises of Sai Lakshmi
Township Private Limited and a survey operation u/s 133A of the Act in
its branch office on 22.8.2008. A survey u/s 133A of the Act was
conducted in the case of the assessee also. During the course of search
and survey, it was found that the assessee is working as project Director
in M/s. Sai Lakshmi Township Private Limited and actively engaged in
selling plots of the company as well as of other concerns. Notice u/s
148 of the Act was issued to the assessee and the assessments were
completed u/s 143(3) r.w.s. 147 of the Act.
ITA No.344 to 348/Vizag/2017 Suryanarayana Vangapalli& Goddi Kanna Rao, VSKP Aggrieved by the order of the A.O., the assessee went on appeal before
the CIT(A) and raised the following grounds of appeal:
On the facts and in the circumstances of the case the order of the learned Deputy Commissioner of Income Tax, Central Circle-1, Visakhapatnam is erroneous in law and facts of the case.
On the facts and in the circumstances of the case the learned Assessing Officer erred in law and facts in making an addition of Rs.7,20,000/- as investment out of undisclosed commission ignoring the explanation offered by the appellant about the sources. On the facts and in the circumstances of the case the learned Assessing Officer ought to have accepted the Returned income as the same constitutes a true and full disclosure of the income earned by the appellant by way of commission as such would not have recourse to the statement under section 132(4) which was retracted and the sources were explained.
The appellant crave leave to add to, delete, alter, amend, substitute or modify all or any of the above grounds.
Ld. CIT(A) dismissed the appeal of the assessee, hence, assessee
is in appeal before us challenging the order of the CIT(A) on the
following grounds:
“1. On the facts and in the circumstances of the case, the order of the learned CIT(A) to the extent confirming the order of the A.O. under section 143(3) read with Section 147 of the Income-tax Act, 1961 is erroneous in law and facts of the case.
On the facts and in the circumstances of the case, the learned CIT(A) is erred in law and facts of the case in confirming the impugned order passed by the A.O. consequent to the action u/s 132 as the A.O. ought to have applied the applicable provisions of section 153C and not the provisions of section 147 of the Act.
On the facts and in the circumstances of the case the learned CIT(A) erred in law and facts of the case in confirming the addition of ` 7,20,000/- without any cogent evidence ignoring the other facts of the circumstances.
The appellant crave leave to add to/alter/substitute/delete/modify all or any of the above grounds.”
ITA No.344 to 348/Vizag/2017 Suryanarayana Vangapalli& Goddi Kanna Rao, VSKP 4. Ground Nos.1 & 2 raised before the Tribunal are related to the
validity of the assessment made u/s 143(3) r.w.s. 147 of the Act and
ground No.2 is related to the completion of assessment under section
153C of the Act instead of section 147 of the Act. Both the grounds of
appeal are technical in nature but not raised before the Ld. CIT(A). The
LD. A.R. argued that the assessment made u/s 147 of the Act is illegal
and bad in law and the A.O. should have made the assessment u/s 153C
of the Act, since there was a search action u/s 132 of the Act in the case
of M/s. Sai Lakshmi Township Pvt. Ltd. and found the incriminating
material on the basis of which the assessments were reopened.
Therefore, argued that the ground should be admitted and be
adjudicated.
On the other hand, the Ld. D.R. vehemently opposed the
admission of above grounds, which was not raised before the CIT(A).
The Ld. D.R. further argued that in case the grounds are are admitted,
an opportunity should be given to revenue to adjudicate the grounds by
the Ld. CIT(A).
We have heard both the parties, perused the materials available
on record and gone through the orders of the authorities below. The
assessee’s case is that a search and seizure operation was conducted
u/s 132 of the Act in the case of Sai Lakshmi Township Pvt. Ltd., and
ITA No.344 to 348/Vizag/2017 Suryanarayana Vangapalli& Goddi Kanna Rao, VSKP the incriminating material was found on the basis of which reassement
proceedings u/s 147 are initiated in the assessee’s case otherwise there
is no case for reassessment. As per the provisions of section 153C of the
Act the assessment should have made u/s 153C r.w.s. 143(3) of the Act
but not under section 147 of the Act, hence argued that the grounds
raised by the assessee in ground Nos.1 & 2 goes to the root of the
assessment. However, the assessee did not raise the above two
grounds before the Ld.CIT(A). Therefore, in the interest of justice, we
are of the considered opinion that the issue should be remitted back to
the file of the Ld.CIT(A) who will adjudicate the above grounds and
decide the issue afresh on merits. Accordingly, we remit the appeals
back to the file of the CIT(A) to decide the issue afresh on merits.
In the result, the appeals filed by the assessee are allowed for
statistical purposes. The above order was pronounced in the open court on 14th Mar’18.
Sd/- Sd/- (वी. दुगा�राव) ( ड.एस. . . . सु�दर "संह) (V. DURGA RAO) (D.S. SUNDER SINGH) �या�यक सद�य/JUDICIAL MEMBER लेखा सद�य/ACCOUNTANT MEMBER #वशाखापटणम /Visakhapatnam: 'दनांक /Dated : 14.03.2018 VG/SPS
ITA No.344 to 348/Vizag/2017 Suryanarayana Vangapalli& Goddi Kanna Rao, VSKP आदेश क� ��त)ल#प अ*े#षत/Copy of the order forwarded to:-
अपीलाथ� / The Appellant – Sri Samuel Nagadesi, Chartered Accountant, 408, Sri Ramakrishna Towers, Besides Image Hospitals, Ameerpet, Hyderabad-500 073. 2. ��याथ� / The Respondent – The DCIT, Central Circle-1, Visakhapatnam 3. आयकर आयु+त / The Pr. CIT (Central), Visakhapatnam 4. आयकर आयु+त (अपील) / The CIT (A)-3, Visakhapatnam 5. #वभागीय ��त�न.ध, आय कर अपील�य अ.धकरण, #वशाखापटणम / DR, ITAT, Visakhapatnam 6. गाड� फ़ाईल / Guard file आदेशानुसार / BY ORDER // True Copy // Sr. Private Secretary ITAT, VISAKHAPATNAM