Parijatha Homes & Developers Pvt.Ltd., Hyd, Hyderabad V. ACIT, Circle-16(3), Hyderabad, Hyderabad

ITA 1111/HYD/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2425 (ITAT-HYDERABAD)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2017
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 01-06-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 22-08-2016
• Court: TRIBUNAL
• Department Lawyers: U MINICHANDRAN
• Assessee Lawyers: T RAJENDRA PRASAD

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B (SMC), HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER I.T.A. NO. 1111/HYD/2016 ASSESSMENT YEAR: 2005-06 M/S. PARIJATHA HOMES & DEVELOPERS PVT. LTD., SECUNDERABAD [PAN: AACCP8348R] VS ASST. COMMISSIONER OF INCOME TAX, CIRCLE-16(3), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI T. RAJENDRA PRASAD, AR FOR REVENUE : SMT U. MINICHANDRAN, DR DATE OF HEARING : 01-06-2017 DATE OF PRONOUNCEMENT : 07-06-2017 O R D E R THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF TH E COMMISSIONER OF INCOME TAX (APPEALS)-4, HYDERABAD, DATED 16-06-2016 AGAINST THE PENALTY LEVIED U/S. 271(1)(C) OF THE INCOME TAX ACT [ACT] BY THE ASSESSING OFFICER (AO). 2. BRIEFLY STATED FACTS ARE THAT ASSESSEE-COMPANY IS ENG AGED IN THE BUSINESS OF DEVELOPING AGRICULTURAL LANDS INTO HO USE FLATS. SURVEY OPERATIONS WERE CONDUCTED ON 17-03-2006. IN THE AY 2005- 06, AO HAS CONSIDERED THE ADVANCES RECEIVED FOR SAL E OF FLATS TO THE TUNE OF RS. 50,60,200/- BY INCLUDING THE SAME TO THE TU RNOVER SHOWN IN THE P&L A/C AND ESTIMATED INCOME AT 12.5%. T HE MATTER WAS CARRIED TO CIT(A), WHO WHILE CONFIRMING THE ADVAN CES ALSO TO BE CONSIDERED AS TOTAL TURNOVER, REDUCED THE ESTIMATION TO 8% . WHEN I.T.A. NO. 1111/HYD/2016 M/S. PARIJATHA HOMES & DEVELOPERS PVT. LTD., :- 2 - : THE MATTER WAS FURTHER CARRIED IN APPEAL TO THE ITAT, IT AT HAS SET ASIDE THE ISSUE DIRECTING ASSESSEE TO PROVIDE EVIDENCE THAT AMOUNT OF RS. 50,60,200/- IS TRADE ADVANCE . IN THE CONSEQUENTIAL ORDER, AO CONSIDERED ONLY AN AMOUNT OF RS. 19,60,200/- AS T URNOVER, AS THE AMOUNT WHICH WAS RETURNED LATER SO THE SAME CANNOT B E CONSIDERED AS TURNOVER IN OTHER YEARS AND ACCORDIN GLY RESTRICTED THE AMOUNT TO THE ABOVE AMOUNT AND ESTIMATED 8% OF THE I NCOME THEREON AT RS. 1,56,816/-. ASSESSEE, HOWEVER, DID N OT PREFER ANY APPEAL ON QUANTUM ADDITION. SINCE PROCEEDINGS U/S. 271(1)(C) WERE INITIATED ORIGINALLY, THE PROCEEDINGS WERE FINALI SED BY THE ORDER DT. 30-06-2011. HOWEVER, IN THE PENALTY ORDER, AO HAS CONSIDERED THE AMOUNT OF RS. 19,60,200/- FOR LEVY OF PENALTY FOR FURNISHING INACCURATE PARTICULARS AND LEVIED PENALTY OF RS. 1,72,150/-, WHICH IS INCIDENTALLY MORE THAN THE INCOME BROUGHT TO TAX. 3. ASSESSEE CARRIED THE MATTER TO CIT(A), WHO AFTER NOT ICING THAT ASSESSEE HAS FILED AN APPEAL BELATEDLY AND NO CONDO NATION WAS FILED, DISMISSED THE APPEAL AS NOT MAINTAINABLE. 4. AFTER CONSIDERING THE RIVAL CONTENTIONS I AM OF THE O PINION THAT THE CIT(A) SHOULD HAVE GIVEN AN OPPORTUNITY TO AS SESSEE. AS SEEN FROM COPY OF FORM 35 PLACED ON RECORD, IT IS NO TICED THAT ASSESSEE HAS NOT FILLED UP THE COLUMN PERTAINING TO DATE OF SERVICE OF PENALTY ORDER. HOW LD.CIT(A) COULD DETERMINE THE DELAY IN FILING THE APPEAL IS NOT UNDERSTANDABLE. THERE SEEMS TO BE NO OPPORTUNITY GIVEN TO ASSESSEE WITH REFERENCE TO CONDONA TION OF DELAY. IN VIEW OF THAT, I AM OF THE OPINION THAT THE M ATTER HAS TO BE RE-CONSIDERED BY THE LD.CIT(A) AFTER GIVING DUE OPPOR TUNITY TO I.T.A. NO. 1111/HYD/2016 M/S. PARIJATHA HOMES & DEVELOPERS PVT. LTD., :- 3 - : ASSESSEE TO EXPLAIN WHETHER THERE IS ANY DELAY OR NOT A ND IF SO REASONS FOR THE DELAY. SINCE NO OPPORTUNITY WAS GIVEN TO ASSESSEE ON THIS ISSUE, THE ORDER OF THE CIT(A) IS LIABLE TO BE SET ASIDE. 4.1. INCIDENTALLY, LD. COUNSEL ALSO SUBMITTED THAT PENAL TY IS ONLY ON ESTIMATION AND AS NOTICED, THE PENALTY LEVIED IS MO RE THAN THE INCOME BROUGHT TO TAX. THERE IS ERROR IN THE ORDER OF THE AO WHILE LEVYING PENALTY. HOWEVER, THESE ASPECTS CAN BE CONSI DERED BY THE LD.CIT(A), AFTER GIVING DUE OPPORTUNITY TO ASSESSEE. 5. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH JUNE, 2017 SD/- (B. RAMAKOTAIAH) ACCOUNTANT MEMBER HYDERABAD, DATED 7 TH JUNE, 2017 TNMM I.T.A. NO. 1111/HYD/2016 M/S. PARIJATHA HOMES & DEVELOPERS PVT. LTD., :- 4 - : COPY TO : 1. M/S. PARIJATHA HOMES & DEVELOPERS PVT. LTD., C/O . D. VIJAYA KUMAR, ADVOCATE AND RAJENDRA PRASAD TALLU RI, PLOT NO. 8, # 6-3-668/10/8, DURGA NAGAR COLONY, PUNJAGUTTA, HYDERABAD. 2. THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE-16( 3), HYDERABAD. 3. COMMISSIONER OF INCOME TAX(APPEALS)-4, HYDERABAD . 4. THE PR. COMMISSIONER OF INCOME TAX-4, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.