RANJITH KUMAR MANIKONDA ,HYDERABAD vs. INCOME TAX OFFICER, WARD-11(3) , HYDERABAD
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Income Tax Appellate Tribunal, Hyderabad ‘ B ‘ Bench, Hyderabad
Before: SHRI K. NARASIMHA CHARY & SHRI MADHUSUDAN SAWDIA
आदेश/ORDER PER SHRI MADHUSUDAN SAWDIA, A.M: This appeal is filed by Shri Ranjith Kumar Manikonda (“the assessee”), feeling aggrieved by the order passed by the learned Commissioner of Income Tax (Appeals)-1, Hyderabad (“ld. CIT(A)”), dated 18.10.2019 for the A.Y. 2009-10. 2. Brief Facts of the case are that, during the course of survey proceedings in case of M/s. KSR Constructions, a statement u/s 131 of the income tax Act, 1961 (“ the Act”) was recorded from the assessee on 29.10.2010, wherein he had mentioned that along with his wife the assessee had purchased an agricultural land at Kandi
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Village, Medak. As the assessee has not filed return of income for the A.Y. 2009-10
reflecting the sources of investment, therefore, notice u/s 148 of the Act was issued
by the learned Assessing Officer (“ Ld. AO”) to the assessee on 29.03.2016. The
assessee filed return of income on 21.12.2016 declaring total income of Rs.
3,00,000/-. Subsequently notice u/s 143(2) was issued on 21.12.2016 and the
assessment for A.Y. 2009-10 was completed by the Ld. AO on 28.12.2016 u/s 143(3)
r.w.s 147 of the Act assessing the total income at Rs. 86,68,136/ - by making the
addition towards unexplained investment of Rs. 83,68,136/-.
Feeling aggrieved by the order passed by Ld. AO, the assessee filed an appeal
before the Ld.CIT(A) who confirmed the addition made by the Ld. AO and dismissed
the appeal of the assessee. The relevant portion of the order of the Ld. CIT(A) are
reproduced as under :
“5,3. I have carefully considered the facts of the case, assessment order, submissions of the appellant. During the appeal proceedings also even though notices were given for hearing since 28.8.2017, only once, the authorized representative appeared and submitted the written submissions. There was no response to the hearing notices issued by thisoffice and no details forwarded. Therefore, based on the information available on record, the appeal is disposed off. 5.4. At the time of the assessment proceedings the appellant filed his Return of Income in reply to the notices issued to him. Except merely making a few statements to the show cause notice issued to him, the appellant did not produce any documents in proof of his statement. Therefore, the assessing officer completed the assessment based on the information available on record, impounded material during survey conducted on M/s. KSR Constructions, sworn statement of the appellant, etc. As there is neither proper reply nor submissions from the appellant, l there is no interference required in the order of the Assessing Officer. Hence, the addition made by the assessing officer is confirmed.”
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Feeling aggrieved with the order of Ld.CIT(A), the assessee is in appeal
before us. The assessee has raised as many as 12 grounds while filing the
memorandum of appeal in form no. 36 and also raised 7 additional grounds
subsequently before us.
The Ld. AR submitted that additional grounds so filed are admissible in
view of judgment rendered by the Hon’ble Supreme Court in the case of
National Thermal Power Co. Ltd. v. CIT (1998) 229 ITR 383 (SC). The prayer for
admission of additional grounds which are not in memorandum of appeal are
being admitted for adjudication in terms of Rule 11 of the Income Tax
(Appellate Tribunal) Rules, 1963 owing to the fact that objections raised in
additional ground are legal in nature for which relevant facts are stated to be
emanating from the existing records.
At the outset, the Ld. AR submitted that the additional ground no. 16 raised by
the assessee may kindly be adjudicated first as the outcome of this ground will have
bearing on the other grounds raised by the assessee. For that purpose, the learned
AR drawn our attention to Ground No.16 of the Additional Grounds of appeal which
is reproduced as under :
“The Ld. CIT(A) ought to have appreciated the fact that assessing officer issued the notice u/s 143(2) on the same day of filing of return which is invalid and bad in law.”
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With regards to their submission on Ground No.16, the Ld. AR submitted that, for
the A.Y. 2009-10, the assessee had filed return of income on 21.12.2016 and the Ld.
AO had issued a notice u/s 143(2) of the Act on 21.12.2016 i.e. on the same day on
which the assessee had filed his return of income. Therefore this indicates that the
assessing officer had issued the notice without considering the return filed by the
assessee and without application of his mind.
The Ld. AR also submitted that as per provisions contained in the Act notice u/s
143(2) of the Act can be issued only after assessing officer examining the return filed
by the assessee. The most important condition which is required is that, before issue
of notice u/s 143(2) of the Act, the Ld. AO must apply his mind whether he "considers
it necessary or expedient". It can be possible only when the assessing officer goes
through the return of income filed by the assessee. The assessing officer will have to
look at the information available with him based on which notice u/s 148 of the Act is
issued, compare it with the details available in the return of income filed by the
assessee and then he can say that it is 'necessary' to issue the notice u/s 143(2) of
the Act. Therefore the Ld. AR contended that the notice issued u/s 143(2) of the Act
on the same day on which the assessee had filed his return of income is without
application of mind on the part of the Ld. AO and required to be quashed. Therefore
the Ld. AR prayed before the Bench to quash the notice issued u/s 143(2) and delete
the addition made by the Ld. AO. For his submission the Ld. AR relied on the
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decisions of ITAT, Hyderabad in the case of Smt. Saritha Shivayyagiri vs ITO in ITA No.
98/Hyd/2020 and in the case of Simranpal Singh Suri vs ITO in ITA No.2821/Del/2019.
Per contra, the Ld. DR submitted that the return was filed by the assessee
on 21/12/2016 and there was no sufficient time with the Ld. AO to complete
the assessment within the stipulated time. She further submitted that this
might be the reason before the Ld. AO to issue notice u/s 143(2) of the Act on
the same day on which the assessee had filed his return of income. Hence the
Ld. DR requested to uphold the order of the revenue authorities.
We have heard the rival contentions and gone through the record in the
light of submissions made by the either side. There is no dispute on the fact
that the assessee had filed return of income on 21.12.2016 and the Assessing
Officer had issued notice u/s 143(2) of the Act on 21.12.2016 i.e. on the same
day on which the assessee had filed his return of income. The identical issue
had came before the coordinate bench of ITAT in the case of Smt. Saritha
Shivayyagiri vs ITO ( Supra), in which the ITAT in para no. 15 of its order held
as under:
"15. There is another reason to delete the addition made by the Revenue as in the present case, the Assessing Officer had issued the notice us 143(2) of the Act on 20.12.2016, i.e., the date of filing of the return of income by the assessee. The Assessing Officer is duty bound to analyze the return of income and thereafter, cull out the issues on which he needs information/ documents from the assessee. In the present case, it is improbable to accept that the Assessing Officer on the date of receipt of the return, had handed over by the same entry in the order sheet issued /s 143(2) of the Act.
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The above said act of the Assessing Officer had been the subject matter of adjudication by the Hon'ble Delhi High Court in the case of Director of Income Tax Vs. Society for Worldwide Interbank Financial, Telecommunications in ITA 441/2010 dt. 13.04.2010, wherein the Hon'ble Delhi High Court has quashed the assessment proceedings... ...”
Hence following the decision of the coordinate Bench of ITAT held in the case
of Smt. Saritha Shivayyagiri vs ITO(Supra), we held that the notice issued by the Ld.
AO on the same day on which the assessee had filed his return of income is not a
valid notice and the assessment made by the Ld. AO on the basis of such invalid
notice cannot be sustained and required to be deleted. Hence we delete the addition
made by the Ld.AO. Accordingly the ground of the assessee is allowed.
Since the assessee succeeds on the legal grounds, the other grounds raised by
the assessee are not required to be adjudicated.
In the result, the appeal of the assessee is allowed.
Order pronounced in the open Court on 28/06/2024.
Sd/- Sd/- (K. NARAIMHA CHARY) (MADHUSUDAN SAWDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER Hyderabad. Dated: 28/06/2024. * Reddy gp
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Copy of the Order forwarded to : 1. Shri Ranjith Kumar Manikonda, Plot Nos.21 & 22, PVR Heights, Saibaba Nagar Colony, Kukatpally, Hyderabad-500072 2. ITO, Ward 11(3), Hyderabad. 3. Pr.CIT-5, Hyderabad. 4. DR, ITAT, Hyderabad. 5. Guard file. BY ORDER,
Assistant Registrar ITAT, Hyderabad
