Demi Realtors, Hyderabad vs Assessee

M/s. Demi Realtors, Vs. Asstt. Commissioner of Hyderabad Income Tax, Circle 8(1) Pan: AAFFD 9401 P Hyderabad (Appellant) (Respondent)

Assessee by: Shri J. Prabhakar, CA Department by: Shri Ramakrishna Bandi, (DR)

Date of Hearing: 09/01/2015 Date of Pronouncement: 28/01/2015

ORDER

Per Smt. Asha Vijayaraghavan, J.M.

This is a miscellaneous application filed by the assessee for recalling the order in ITA No.649/Hyd/2013 dated 6.12.2013 under the following facts and circumstances:

1) That the ITAT while deciding on the factum of filing condonation petition omitted to construe that the condonation petition was indeed filed and that the contents of the said petition was bodily lifted and reproduced in Para

2.9 at page No.10 of theCIT (A)'s order dated 19.2.2013 by stating that there was a delay of 2 days in filing the appeal on account of intervening holidays (Saturday and Sunday) and a cumulative delay of 4 days if cognizance is not taken for the intervening holidays. Hence there is a patent error in the order of the ITAT at page No.9 para 14.2 stating that

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the assessee has not taken any pains to file the condonation petition before the CIT (A).

2) It was submitted that there is an interpretational error in the order of the ITAT with regard to the actual number of days in the delay for the admission of the appeal in as such as the ostensible date of filing the appeal would reveal that the delay is only 2 days while the view held by the CIT (A) as regard the number od days delay was based on actual date of adjustment of taxes is a cumulated sum of 66 days which has been faithfully reproduced by the ITAT as a ruse to dismiss the case of the assessee in limini.

3) The assessee submitted that the adjustment of cash seized in the sum of Rs.2.00 lakhs on 5.4.2010 is a non event for the purpose of calculation of delay since the money was already in the possession of the Department, even before the total income in respect of this A.Y was in the contemplation of the Department or the assessee as the case may be and the mere fact of a failure to adjust the same or adjusting the same on 5.4.2010 does not obliterate the fact that moneis belonging to the assessee are available with the Department since the date of its seizure and lying in the P.D. a/c to the detriment of the assessee.

4) Assessee prayed that this crucial factual proposition should be treated as a mistake of fact in the order of the ITAT in as much as the assessee is not responsible for unilateral acts of the Department in its adjustment of or its failure to adjust the seized cash against existing liability u/s 132 B of the Act.

5) Assessee further submitted that no opportunity was granted at the time of hearing of the appeal by the ITAT in

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the second round of appeal as to the finding about the detrimental view that Rs.2.00 lakhs was adjusted against the tax dues on regular demand and hence allegedly not available for adjustment u/s 249(4) of the Act.

2. After going through the miscellaneous application filed by the assessee, we find that there appears certain mistakes apparent on record. We find it necessary to recall the order of the ITAT and direct the registry to post the case for a fresh hearing and inform the parties accordingly.

3. In the result, miscellaneous application filed by the assessee is allowed.

Order pronounced in the Open Court on 28th January, 2015.

Sd/- Sd/- (P.M. Jagtap) (Asha Vijayaraghavan) Accountant Member Judicial Member

Hyderabad, dated 28th January, 2015.

Vnodan/sps Copy to:

1. M/s. Demi Realtors, 8-3-167/8/133/301 Plot No.133, Lalitanilayam Apartments, Rajeevnagar, Kalyannagar, Hyderabad

2. ACIT, Circle 8(1) IT Towers, AC Guards, Hyderabad

3. The CIT(A)-III Hyderabad

4. The CIT-II Hyderabad

5. The DR, ITAT, Hyderabad

6. Guard File

By Order

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