Iteamic Private Limited , Bangalore V. Commissioner of Income Tax (Appeals)-3, Bangalore

ITA 1133/BANG/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2358 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-08-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 22-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VANDANA SAGAR
• Keywords: Opportunity of being heard; Scheme of amalgamation; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENT AND SHRI A.K.GARODIA, ACCOUNTANT MEMBER ITA NO.1133/BANG/2017 ASSESSMENT YEAR : 2009-10 THE CIBERSITES INDIA PVT. LTD., (FORMERLY ITEAMIC PVT. LTD.,) 6 TH AND 7 TH FLOOR, AQUAMARINE BLOCK, BAGMANE DEVELOPERS PVT. LTD., SEZ, KR PURAM, MARATHALLI RING ROAD, BANGALORE-560 048. PAN AABCI 1669 P. VS. THE COMMISSIONER OF INCOME- TAX (APPEALS)-3 BANGALORE. APPELLANT RESPONDENT APPLICANT BY : SMT. TANMAYEE RAJKUMAR, ADVOCATE RESPONDENT BY : SMT. VANDANA SAGAR, CIT (DR) DATE OF HEARING : 26.08.2019 DATE OF PRONOUNCEMENT : 04.09.2019 O R D E R PER N.V. VASUDEVAN, VICE PRESIDENT THIS IS AN APPEAL BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 22/2/2017 OF CIT(A)-III, BENGALURU RELA TING TO A.Y. 2009-10. 2. THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINES S OF SOFTWARE DEVELOPMENT. FOR ASST. YEAR 2009-10, THE ASSESSEE FILED A RETURN OF INCOME DECLARING A LOSS OF RS.7,91,31,383 /-. THE AO COMPLETED THE ASSESSMENT DETERMINING THE LOSS AT A SUM OF RS.2,03,45,593/- AFTER DISALLOWING THE CLAIM OF THE ASSESSEE FOR DEDUCTION ON ACCOUNT OF PROVISION FOR BAD AND DOUBT FUL DEBTS AS ITA NO.1133/BANG/2017 PAGE 2 OF 5 WELL AS RESEARCH AND DEVELOPMENT EXPENDITURE OF A S UM OF RS.1,54,10,479/- AND RS.4,33,75,311/- RESPECTIVELY. 3. AGAINST THE AFORESAID ADDITION MADE BY THE AO A SSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A) APPEAL OF THE ASSESSEE WAS FIXED FOR HEARING ON 5 OCCASIONS. THE LAST ONE SUCH OCCASION WAS ON 8/2/2017. ALL THE NOTICES SE NT BY THE CIT(A) FOR HEARING HAD BEEN RETURNED WITH A POSTAL ENDORSEMENT LEFT RETURN TO SENDER. THE CIT(A) FOUND THAT THE NOTICES WERE SENT TO THE ADDRESS GIVEN BY THE ASSESSEE IN FORM NO.35. THE CIT(A) ALSO ATTEMPTED TO SERVE THE NOTICE AT A DIFFERENT ADDRESS FOUND IN THE PAN ADDRESS. SINCE ALL THE NOTICES WERE RETURN ED UNSERVED, THE CIT(A) PROCEEDED TO DECIDE THE APPEAL EX-PARTE. HE FOUND NO GROUNDS TO INTERFERE WITH THE CONCLUSIONS OF THE AO AND ACCORDINGLY CONFIRMED THE ADDITIONS MADE BY THE AO. 3. AGGRIEVED BY THE ORDER OF THE CIT(A), THE ASSESS EE IS IN APPEAL BEFORE THE TRIBUNAL. 4. IN GROUND NO.2, THE ASSESSEE HAS CHALLENGED THE ACTION OF THE CIT(A) IN DECIDING THE APPEAL EX-PARTE. THE PL EA OF THE ASSESSEE WAS THAT THE ASSESSEE WAS EARLIER KNOWN AS ITEAMCI PVT. LTD. AND UNDER A SCHEME OF AMALGAMATION GOT AMALGAM ATED WITH M/S CIBER SITES INDIA PVT. LTD. THE SCHEME OF AMAL GAMATION WAS APPROVED BY THE HONBLE HIGH COURT BY ITS ORDER DAT ED 29/3/2011 IN C.P NO.263 & 264/2010. IT WAS THE PLEA OF THE A SSESSEE THAT THE EFFECTIVE DATE OF AMALGAMATION AS PER THE SCHEM E WAS 1/4/2009. IT HAS BEEN POINTED OUT THAT THE AOS OR DER WAS PASSED ON 7/12/2011 AND THE APPEAL AGAINST THE SAID ORDER WAS PREFERRED BEFORE THE CIT(A) ON 16/1/2012. BECAUSE OF THE AMA LGAMATION, THE COMPANY HAD TO CHANGE ITS REGISTERED OFFICE BUT FAILED TO INFORM THE OFFICE OF THE CIT(A) ABOUT THE CHANGE OF ADDRES S. THE REASON FOR FAILURE TO INTIMATE THE CHANGE OF ADDRESS TO THE OF FICE OF THE CIT(A) ITA NO.1133/BANG/2017 PAGE 3 OF 5 WAS EXPLAINED THUS BY THE ASSESSEE. IT WAS SUBMITT ED THAT SINCE THE ASSESSEE HAD NO OPPORTUNITY OF BEING HEARD BEFO RE CIT(A), THE ORDER OF CIT(A) SHOULD BE SET ASIDE AND THE ISSUES REMANDED TO CIT(A) FOR CONSIDERATION AFRESH AFTER AFFORDING OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE ASSESS EE AND ARE OF THE VIEW THAT THE ASSESSEE DID NOT HAVE PROPER O PPORTUNITY OF BEING HEARD BEFORE THE CIT(A) FOR THE REASONS GIVEN ABOVE. IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF THE CIT(A) AND REMAND TO THE CIT(A) FOR FRESH CONSIDERATION THE ISSUES R AISED BY THE ASSESSEE BEFORE THE CIT(A) ON MERITS. THE CIT(A) W ILL AFFORD OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE D ECIDING THE ISSUES. THE ASSESSEE WILL ALSO DULY COMMUNICATE TH E CORRECT POSTAL ADDRESS TO THE OFFICE OF THE CIT(A) FOR ISSUE OF HE ARING NOTICES. 6. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH SEPTEMBER , 2019. - /- SD/- SD/- ( A.K.GARODIA) ( N.V. VASUDEVAN) ACCOUNTANT MEMBER V ICE PRESIDENT BANGALORE, DATED, THE 4 TH SEPTEMBER, 2019 / VMS / ITA NO.1133/BANG/2017 PAGE 4 OF 5 COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, BANGALORE ITA NO.1133/BANG/2017 PAGE 5 OF 5 1. DATE OF DICTATION 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO SR.P.S .. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER .. 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S. .. 6. DATE OF UPLOADING THE ORDER ON WEBSITE.. 7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO .. 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. DATE ON WHICH ORDER GOES FOR XEROX & ENDORSEMENT 10. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 11. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER . 12. THE DATE ON WHICH THE FILE GOES TO DISPATCH SECTION FOR DISPATCH OF THE TRIBUNAL ORDER . 13. DATE OF DESPATCH OF ORDER. ..