Siri Jewels Private Limited , Hyderabad V. Income Tax Officer, Ward-3(2), Hyderabad

ITA 1/Hyd/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0071 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 13-05-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 01-01-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DINESH PARUCHURI
• Assessee Lawyers: A V RAGHURAM
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES SMC BENCH: HYDERABAD BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER ITA. NO.01/HYD/2019 ASSESSMENT YEAR: 2012 - 13 SIRI JEWELS PRIVATE LIMITED, HYDERABAD. PAN: AAMCS 1013 Q VS. ITO, WARD - 3(2), HYDERABAD. (APPELLANT) (RESPONDENT) FOR ASSESSEE: SRI A.V. RAGHURAM FOR REVENUE : SRI DINESH PARUCHURI, DR DATE OF HEARING : 13/05/2019 DATE OF PRONOUNCEMENT : 24 /05/2019 ORDER PER V. DURGA RAO, JM . THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) - 3, HYDERABAD DATED 09/07/2018 FOR THE ASSESSMENT YEAR 2012 - 13. IN THIS APPEAL, ASSESSEE RAISED 5 GROUNDS OF APPEAL WHICH REVOLVE AROUND THE CIT(A)S DECISION IN DISMISSING THE APPEAL EXP ARTE WITHOUT APPRECIATING THE FACTS AND MERITS OF THE CASE AND WITHOUT AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 2. AT THE OUTSET, LEARNED COUNSEL FOR THE ASSESSEE BROUGHT TO OUR NOTICE THAT THERE IS A DELAY OF 71 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL WITHIN THE PRESCRIBED TIME LIMIT. IN THIS REGARD EXPLAINING THE REASONS FOR NOT FILING THE APPEAL WITHIN THE TIME LIMIT, LEARNED COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE AFFIDAVIT FILED BY THE 2 MANAGING DIRECTOR OF THE ASSESSEE AND READOUT THE RELEVANT PORTIONS FROM THE AFFIDAVIT. FOR THE SAKE OF READY REFERENCE RELEVANT PARAS ARE EXTRACTED AS UNDER: 3. OUR COUNSEL PREPARED APPEAL AND HAS SENT THE SOFT COPY OF THE SAME TO SRI V. SRINATH, CA., ON 01/09/2018. THIS MAIN WENT INTO JUNK MAIL FOLDER OF SRI V. SRINATH, CA AND HE COULD NOT CHECK THE EMAI. THE EMAIL GOT DELETED IN THE COURSE OF TIME. LATER, TOWARDS THE END OF DECEMBER, 2018, THE A.O. (ORAL CALL) CALLED US FOR FINALIZATION OF PENALTY PROCEEDINGS, WE GOT IN TOUCH WITH THE OFFICE M/S. CKS ASSOCIATES, CAS, WHO ON INQUIRING ABOUT THE FILING OF THE APPEAL WITH OUT PRESENT COUNSEL INFORMED US THAT THE APPEAL WAS STILL NOT FILED DUE TO COMMUNICATION GAP AND THAT WE HAVE TO IMMEDIATELY FILE APPEAL. ACCORDINGLY, TH E APPEAL DOCUMENTS WERE COLLECTED ON 31/12/2018 FOR SIGNATURES AND THE CHALLAN WAS PAID ON 31/12/2018. THE APPEAL WAS FILED ON 01/01/2019 BUT WITH A DELAY OF 71 DAYS. 4. IT IS SUBMITTED THAT THE DELAY IN FILING THE APPEAL IS NOT INTENTIONAL BUT IS ON ACCOUNT OF AFORESAID REASONS. IT IS SUBMITTED THAT THE APPELLANT DID NOT STAND TO GAIN ON ACCOUNT OF BELATED FILING OF APPEAL. 3. ON HEARING THE LEARNED COUNSEL FOR THE AS SESSEE AND ON PERUSAL OF THE SAID REASONS EXPLAINED BY THE ASSESSEE FOR NOT FILING THE APPEAL WITHIN THE STIPULATED TIME, I AM OF THE CONSIDERED VIEW THAT THERE IS A REASONABLE AND SUFFICIENT CAUSE WHICH PREVENTED THE ASSESSEE IN FILING THE APPEAL WITHIN T HE PRESCRIBED TIME LIMIT. THEREFORE, I CONDONE THE DELAY AND PROCEED TO DISPOSE OF THE APPEAL ON MERITS. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE - COMPANY IS ENGAGED IN THE BUSINESS OF TRADING IN JEWELLERY AND DOING BUSINESS IN THE NAME AND STYLE OF M/S. SIRI JEWELLERS PVT LTD. THE ASSESSEE FILED ITS RETURN OF INCOME ADMITTING A LOSS OF RS. 8,16,810/ - . THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS AND AFTER DUE PROCESS, THE A.O. COMPLETED THE 3 ASSESSMENT U/S 143(3) OF THE ACT AND THE ASSESSED INCO ME WAS DETERMINED AT RS. 27,06,302/ - WHICH INCLUDES CERTAIN DISALLOWANCES MADE BY THE A.O. 5. AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A) NONE APPEARED TO REPRESENT THE ASSESSEES CASE. CONSIDERING THE ASSESSE ES NON - APPEARANCE, CIT(A) CAME TO THE CONCLUSION THAT THE ASSESSEE DOES NOT WANT TO PURSUE ITS APPEAL AND THEREFORE DISMISSED THE ASSESSEES APPEAL BY RELYING ON THE CERTAIN DECISIONS OF ITAT AND OTHER HIGHER FORUMS INCLUDING THE DECISION OF THE BOMBAY HI GH COURT IN THE CASE OF M/S. CHEMIPOL VS. UNION OF INDIA IN CENTRAL EXCISE APPEAL NO.62 OF 2009 AND THE DECISION OF THE DELHI HIGH COURT IN THE CASE OF CIT VS. MULTIPLAN INDIA (P) LTD REPORTED IN 38 ITD 320 (DEL.). AGGRIEVED, ASSESSEE FILED THE PRESENT AP PEAL BEFORE THE TRIBUNAL. 6. AT THE TIME OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT LD. CIT(A) PASSED AN EXPARTE ORDER ON THE GROUND THE GROUND OF NON - APPEARANCE. ON THIS COUNT, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE CIT(A) OUGHT TO HAVE GIVEN PROPER OPPORTUNITY TO THE ASSESSEE TO REPRESENT ITS CASE AND ERRED IN NOT APPRECIATING THE FACT THAT THE ASSESSEE - COMPANY IS A LOSS MAKING COMPANY AND ITS OPERATIONS HAVE COME TO STAND STILL. HE PRAYED THAT CONSIDERING THE PRINCIPLES O F NATURAL JUSTICE, ASSESSEE MAY BE GIVEN ONE 4 MORE OPPORTUNITY TO REPRESENT ITS CASE BEFORE THE CIT(A) AND THE CIT(A) BE DIRECTED TO DECIDE THE APPEAL ON MERITS. 7. ON THE OTHER HAND, LD DR STRONGLY RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 8. ON HEARING BOTH THE PARTIES AND ON PERUSAL OF THE ORDERS OF THE LOWER AUTHORITIES AS WELL AS THE MATERIAL ON RECORD, I FIND THAT ON THE GROUNDS PRINCIPLES OF NATURAL JUSTICE, THE ASSESSEE SHOU LD BE GIVEN ONE MORE OPPORTUNITY TO SUBSTANTIATE ITS CASE. THAT APART, CIT(A) PASSED EXPARTE ORDER BY APPLY ING THE RATIO IN THE CASE OF MULTIPLAN INDIA (P) LTD (SUPRA) WITHOUT CONSIDERING THE MERITS OF THE CASE. CIT(A) OUGHT TO HAVE PASSED THE ORDER ON M ERITS THOUGH THE ASSESSEE HAS NOT APPEARED. UNDER THESE FACTS AND CIRCUMSTANCES OF THE CASE, I SET - ASIDE THE ORDER PASSED BY THE CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO ADJUDICATION THE APPEAL ON MERITS IN ACCORDANCE WITH LAW AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5 ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH MAY, 2019. SD/ - (V. DURGA RAO) JUDICIAL MEMBER HYDERABAD, DATED: 24 TH MAY, 2019. OKK, SR.PS COPY TO 1. M/S. SIRI JEWELS PRIVATE LIMITED, 5 - 9 - 88/3, FATEH MAIDAN, BASHEERBAGH, HYDERABAD - 01. 2. ITO, WARD - 3(2), SIGNATURE TOWERS, OPP. BOTANICAL GARDEN, KONDAPUR ROAD, HYDERABAD - 84. 3. CIT (A) - 3 , HYDERABAD. 4. PR. CIT - 3 , HYDERABAD. 5. DR, ITAT, HYDERABAD. 6. GUARD FILE