Kewel Bullion Corporation, Secunderabad V. Income Tax Officer, Ward-10(2), Hyderabad

ITA 1069/Hyd/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 1656 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-02-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-A
• Assessment Year: 2013-2014
• Appeal Filed On: 01-07-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: AJAY GANDHI
• Keywords: Principle of natural justice; Initiation of penalty proceedings; Condonation of delay
• Section: 274; 147; 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD (THROUGH VIRTUAL HEARING) BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI S. S. GODARA, JUDICIAL MEMBER ITA NO.1069/HYD/2019 ASSESSMENT YEAR:2013 - 14 KEWAL BULLION CORPORATION, SECUNDERABAD. PAN: AAEFK 0237 F VS. INCOME TAX OFFICER, WARD - 10(2), HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI AJAY GANDHI REVENUE BY: SHRI SUNIL KUMAR PANDEY, DR DATE OF HEARING: 10/02/2020 DATE OF PRONOUNCEMENT: 16 /02/2020 ORDER PER A. MOHAN ALANKAMONY , A.M: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) - 6, HYDERABAD IN APPEAL NO. 10162/2016 - 17/A2 CIT(A) - 6, DATED 26/02/2019 PASSED U/S. 144 R.W.S 147 AND U/S. 250(6) OF THE ACT FOR THE A.Y. 2013 - 14. 2 2. THE ASSESSEE HAS RAISED TEN GROUNDS IN ITS APPEAL AND THEY ARE EXTRACTED HEREIN BELOW FOR REFERENCE: - 1. THE ORDER OF THE LD. CIT(A) IS IN GROSS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND IS BAD IN LAW. 2. THE CIT(A) HAS ERRED IN DISMISSING THE APPEAL IN LIMINE. 3. THE CIT(A) HAS ERRED IN UPHOLDING THE ORDER OF THE ASSESSING OFFICER. 4. THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ADDITION OF THE NON - EXISTENT EXCESS STOCK OF RS. 2,03,89,285/ - . 5. THE CIT(A) HAS ERRED IN UPHOLDING THE ESTIMATION OF THE BUSINESS PROFITS FOR THE YEAR AT RS. 10,00,000/ - . 6. THE CIT(A) HAS ERRED IN UPHOLDING THE ASSESSMENT OF TOTAL INCOME AT RS. 2,13,89,285/ - . 7. THE CIT(A) HAS ERRED IN UPHOLDING THE DEMAND RAISED OF RS. 1,09,71,429/ - . 8. THE LD. CIT(A) HAS ERRED IN UPHOLDING THE INITIATION OF PENALTY PROCEEDINGS U/S. 274 R.W.S 2 71B. 9. THE CIT(A) HAS ERRED IN UPHOLDING THE INITIATION OF PENALTY PROCEEDINGS U/S. 274 R.W.S 271(1)(C). 10. ANY OTHER GROUND THAT MAY BE URGED A T THE TIME OF HEARING. 3. AT THE OUTSET, THE LD. AR SUBMITTED BEFORE US THAT THERE IS A DELAY OF 09 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL. IN THIS REGARD, THE MANAGING PARTNER OF THE ASSESSEE - FIRM HAD SUBMITTED AN AFFIDAVIT SEEKING CONDONATION OF DELAY WHEREIN THE REASONS FOR NOT FILING THE APPEAL WITHIN THE PRESCRIB ED TIME LIMIT WAS EXPLAINED. FOR REFERENCE, THE RELEVANT PORTION FROM THE AFFIDAVIT IS EXTRACTED HEREIN BELOW: - I, R. KEWALCHAND JAIN, PARTNER OF KEWAL BULLION CORPORATION, WAS TO FILE AN APPEAL AGAINST THE ORDER PASSED BY THE CIT(A) - 6, HYDERABAD BY 22/0 6/2019. HOWEVER, THE SAME WAS FILED ON 01/07/2019. THERE WAS CONSEQUENTLY A DELAY OF 9 (NINE) DAYS. I, R. KEWALCHAND JAIN, PARTNER WHO IS TO LOOK ALL THE INCOME TAX MATTERS OF THE FIRM WAS NOT KEEPING WELL SINCE FEW DAYS DUE TO VIRAL FEVER HENCE I COULDN T SIGN THE APPEAL PAPERS IN TIME. THIS TOOK A BIT OF TIME RESULTING IN THE DELAY IN FILING APPEAL BEFORE THE HONBLE BENCH.. 4. ON PERUSAL OF THE AFFIDAVIT FILED BY THE MANAGING PARTNER OF THE ASSESSEE - FIRM , WE ARE OF THE VIEW THAT THE DELAY WAS CAUSE D DUE TO 3 GENUINE REASON AS THE THE MANAGING PARTNER WHO IS LOOKING AFTER THE TAX MATTERS OF THE ASSESSEE - FIRM WAS UNWELL AND THEREFORE HE COULD NOT SIGN THE APPEAL PAPERS IN TIME DUE TO WHICH THERE WAS A DELAY OF 09 DAYS IN FILING THE APPEAL BEFORE THE TR IBUNAL . HENCE, IN THE INTEREST OF JUSTICE, WE HEREBY CONDONE THE DELAY OF 09 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL AND PROCEED TO ADJUDICATE THE APPEAL ON MERITS. 5. AT THE OUTSET, DURING THE TIME OF HEARING OF THE APPEAL, THE LD. AR SUBMITTED BEFORE US THAT THE LD. AO HAD PASSED EX - PARTE ORDER U/S. 144 R.W.S 147 OF THE ACT WITHOUT PROVIDING PROPER OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. THE LD. AR FURTHER SUBMITT ED THAT THE ASSESSEE COULD NOT APPEAR BEFORE THE LD. A.O. DUE TO PERSONAL CONSTRAINS. IT WAS FURTHER SUBMITTED THAT, ON APPEAL, THE LD. CIT(A) HAD ALSO DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE WITHOUT PROVIDING PROPER OPPORTUNITY TO THE ASSESSEE. IT WAS THEREFORE PLEADED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE LD. A.O., SO THAT THE ASSESSEE CAN PURSUE THE APPEAL EFFECTIVELY OTHERWISE GREAT INJUSTICE WILL BE INFLICTED ON THE ASSESSEE. LD. DR ON THE OTHER HAND OBJECTED TO THE SUBMISSIO NS OF THE LD. AR AND ARGUED THAT SUFFICIENT OPPORTUNITIES HAD BEEN PROVIDED TO THE ASSESSEE, HOWEVER, ON THE GIVEN DATES OF HEARING, NEITHER THE ASSESSEE NOR ITS REPRESENTATIVE APPEARED BEFORE THE LD. AO AND BEFORE THE LD. CIT (A). UNDER THESE CIRCUMSTANCE S, THE LD. REVENUE AUTHORITIES HAD NO OTHER OPTION BUT TO PASS EX - PARTE ORDERS ON MERITS BASED ON THE 4 MATERIALS AVAILABLE ON RECORD. HENCE, IT WAS PLEADED , THAT THE ORDERS PASSED BY THE LD. REVENUE AUTHORITIES DO NOT CALL FOR ANY INTERFERENCE AND APPEAL OF THE ASSESSEE MAY BE DISMISSED. 6 . AFTER HEARING THE RIVAL SUBMISSIONS AND CAREFULLY PERUSING THE MATERIALS ON RECORD, WE DO NOT FIND MERIT IN THE ARGUMENTS ADVANCED BY THE LD. AR. THE LD. CIT(A) AND THE LD. A.O. HA D PROVIDED SUFFICIENT OPPORTUNIT IES TO T HE ASSESSEE OF BEING HEARD BUT , AT THE TIME OF HEARING, NEITHER THE ASSESSEE NOR ITS REPRESENTATIVE APPEARED BEFORE THE LD. REVENUE AUTHORITIES AND THEREFORE, THEY WERE LEFT WITH NO OTHER OPTION EXCEPT TO PASS EX - PARTE ORDERS BASED ON THE MATERIALS BEFORE THEM . HOWEVER, CONSIDERING PRAYER OF THE ASSESSEE AND THE ISSUES INVOLVED IN THE APPEAL , IN THE INTEREST OF JUSTICE, WE HEREBY REMIT THE ENTIRE MATTER BACK TO THE FILE OF THE LD.AO FOR DE - NOVO CONSIDERATION. AT THE SAME BREATH, WE ALSO HEREBY CAUTION THE A SSESSEE AND ITS REPRESENTATIVE TO PROMPTLY CO - OPERATE BEFORE THE LD. REVENUE AUTHORITIES IN THEIR PROCEEDINGS FAILING WHICH THE LD. REVENUE AUTHORITIES SHALL BE AT LIBERTY TO PASS APPROPRIATE ORDERS IN ACCORDANCE WITH LAW AND MERITS BASED ON THE MATERIALS ON THE RECORD. IT IS ORDERED ACCORDINGLY. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED HEREIN ABOVE. 5 PRONOUNCED IN THE OPEN COURT ON SIXTEENTH OF FEBRUARY, 2021. SD/ - SD/ - (S.S. GODARA) ( A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED: 16 TH FEBRUARY, 2021. OKK COPY TO: - 1) KEWAL BULLION CORPORATION, PLOT NO.46, KIRAN ENCLAVE, DIAMOND POINT, SIKH ROAD, SECUNDERABAD 500 009. 2) INCOME TAX OFFICER, WARD - 10(2), 5 TH FLOOR, IT TOWERS, AC GUARDS, HYDERABAD - 500 004. 3) THE CIT(A) - 6 , HYDERABAD . 4) THE PR. CIT - 6 , HYDERABAD. 5) THE DR, ITAT, HYDERABAD 6) GUARD FILE