M/s.Ace Resorts & Infrastructure P Ltd., Surat V. Income Tax Officer Ward -1(1)(1), Surat

ITA 119/SRT/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3324 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-05-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 26-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B K
• Keywords: TDS
• Section: 143(3); 40(a)(ia)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA NO.119/SRT/2018 (AY 2013-14) (H EARING IN VIRTUAL COURT) M/S. ACE RESORTS & INFRASTRUCTURE PVT LTD., F-22/23, JOLLY ARCADE, GHOD DOD ROAD, SURAT 395001. PAN : AAFCA 5790 H VS THE INCOME TAX OFFICER, WARD-1(1) (1), SURAT. APPLICANT RESPONDENT ASSESSEE BY NONE. REVENUE BY MS . B.K. PANDA SR. DR DATE OF HEARING 28.05.2021 DATE OF PRONOUNCEMENT 28 .05.2021 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER : 1. THIS APPEAL BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF LD.COMMISSIONER OF INCOME TAX (APPEALS)-1, SURAT HEREINAFTER REFERRED AS LD. CIT(A) DATED 04.12.2017 WHICH IN TURN ARISES FROM THE ASSESSMENT ORDER UNDER SECTION 143(3) DATED 16.03.2016 FOR THE ASSESSMENT YEAR (AY) 2013-14. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION WORK, FILED ITS RETURN OF INCOME ON 01.10.2013 DECLARING TOTAL INCOME AT RS.48,940/-. THE CASE WAS SELECTED FOR SCRUTINY. THE LD.ASSESSING OFFICER (AO) WHILE SERVING STATUTORY NOTICE AND QUESTIONNAIRE, PASSED THE ASSESSMENT ORDER ON 16.03.2016 UNDER SECTION 143(3) OF THE ACT. THE AO WHILE PASSING THE ASSESSMENT ORDER, MADE FOLLOWING ADDITIONS/DISALLOWANCES. M/S.ACE RESORTS & INFRASTRUCTURE P. LTD.,, ITA NO.119/SRT/2018 FOR A.Y.2013-14 2 S.NO. PARTICULARS AMOUNT 1 DISALLOWANCE OF RENT EXPENSES U/S.40(A)(IA) OF THE I.T.ACT. RS.2,20,500/- 2 DISALLOWANCE OF SUPERVISION CHARGES U/S. 40(A)(IA) OF THE I.T.ACT. RS.13,21,719/- 3 ADDITION ON ACCOUNT OF PRIOR PERIOD ITEMS RS.1,42,878/- 4 ADDITION ON ACCOUNT OF LABOUR CONTRACTOR AND SUPERVISION CHARGES RS.21,98,350/- 5 DISALLOWANCE ON ACCOUNT OF INTEREST ON TDS RS.2,30,545/- 3. ON APPEAL BEFORE THE LD.CIT(A), THE ACTION OF AO WAS UPHELD. THE LD.CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE AS UNADMITTED FOR THE WANT OF COMPLIANCE OF VARIOUS SHOW CAUSE NOTICES. FURTHER AGGRIEVED, THE ASSESSEE HAS FILED PRESENT APPEAL BEFORE US. 4. THE ASSESSEE, BESIDES CHALLENGING THE VARIOUS ADDITIONS/DISALLOWANCE MADE IN THE ASSESSMENT ORDER ALSO RAISED GROUND OF APPEAL AGAINST THE PASSING EX-PARTE ORDER BY LD. CIT(A) WITHOUT PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. THE APPEAL CAME UP FOR HEARING ON 20.08.2021. SHRI DHAIRYA VORA, LEARNED AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE, FROM OFFICE OF SAPNESH SHETH & CO CA, WHOSE AUTHORITY LETTER IS ON RECORD, SUBMITS THAT HE MAY BE ALLOWED TO WITHDRAW THEIR AUTHORITY LETTER FROM THE PROCEEDINGS. THE LD. AR FURTHER SUBMITS THAT ASSESSEE HAS ALREADY BEEN INFORMED ABOUT THE DATE OF HEARING AND THAT THEY ARE NOT PROVIDING SUFFICIENT INFORMATION TO REPRESENT THEIR CASE. CONSIDERING THE SUBMISSION OF LEARNED AR OF THE ASSESSEE, THEY ARE DISCHARGED FROM THE PROCEEDINGS. M/S.ACE RESORTS & INFRASTRUCTURE P. LTD.,, ITA NO.119/SRT/2018 FOR A.Y.2013-14 3 6. WE PERUSED THE CONTENTS OF IMPUGNED ORDER PASSED BY THE LD.CIT(A), AND FIND THAT THE LD.CIT(A) DISMISSED THE APPEAL OF ASSESSEE AS UNADMITTED BY TAKING VIEW THAT DESPITE GRANTING VARIOUS OPPORTUNITIES, THE ASSESSEE HAS NOT ATTENDED THE PROCEEDINGS AND THAT ASSESSEE IS NOT INTERESTED IN PURSUING THE APPEAL. THIS FACT WAS CONFRONTED WITH LD. SR. DEPARTMENTAL REPRESENTATIVE (SR. DR) FOR REVENUE. THE SR. DR FOR THE REVENUE SUBMITS THAT ASSESSEE WAS GIVEN AMPLE OPPORTUNITY AS RECORDED BY THE LD.CIT(A) IN PARA 5.1.1 OF THE IMPUGNED ORDER.. THE LD.SR.DR SUBMITS THAT THE ASSESSEE FAILED TO COMPLY WITH THE NOTICE ISSUED BY THE LD.CIT(A). THE LD.CIT(A) LEFT WITH NO OPTION, EXCEPT TO PROCEED TO DECIDE THE ISSUE AND IN ABSENCE OF ANY EVIDENCE OR EXPLANATION AFFIRM THE ACTION OF AO. IN ALTERNATIVE SUBMISSION, THE LD.SR.DR FOR THE REVENUE SUBMITS THAT IN CASE THE HONBLE TRIBUNAL IS DEEM APPROPRIATE, THE ASSESSEE BE DIRECTED TO BE VIGILANT AND NOT TO DEFAULT IN ATTENDING THE PROCEEDINGS AND TO WASTE THE TIME OF PUBLIC AUTHORITIES/LD.CIT(A). 7. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF BOTH THE PARTIES AND HAVE GONE THROUGH THE ORDERS OF LOWER AUTHORITIES. WE HAVE NOTED THAT ASSESSEE DID NOT MAKE ANY COMPLIANCE TO SHOW CAUSE NOTICES ISSUED BY THE LD.CIT(A) AS RECORDED IN PARA 5.1.1 OF THE IMPUGNED ORDER. THE LD.CIT(A) CONFIRMED THE ACTION OF AO BY TAKING VIEW THAT THERE IS NON-COMPLIANCE ON THE PART OF THE ASSESSEE. WE FURTHER FIND THAT IN PARA 5.1.1 THE LD CIT(A) RECORDED THAT FINAL M/S.ACE RESORTS & INFRASTRUCTURE P. LTD.,, ITA NO.119/SRT/2018 FOR A.Y.2013-14 4 SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE AT THE ADDRESS PROVIDED ON APPEAL MEMO. HOWEVER, THE LD. CIT(A) HAS NOT RECORDED HIS SATISFACTION WHETHER THE SAID NOTICE WAS DULY SERVED OR ACKNOWLEDGED ON BEHALF OF ASSESSEE OR NOT. 8. WE, INSTEAD OF GOING INTO CONTROVERSY, WHETHER THE ASSESSEE DEFAULTED IN ATTENDING THE PROCEEDINGS BEFORE THE LD.CIT(A), WE FIND THAT THE ORDER OF THE LD.CIT(A) IS NOT IN ACCORDANCE WITH MANDATE OF SECTION 250(6) OF THE INCOME TAX ACT. SECTION 250(6) OF THE ACT MANDATES THAT THE LD. CIT(A) WHILE DECIDING THE APPEAL IS REQUIRED TO PASS ORDER ON POINTS OF DETERMINATION (GROUNDS OF APPEALS), DECISION THEREIN ON AND REASONS FOR SUCH DECISION. 9. THEREFORE, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, THE APPEAL OF THE ASSESSEE IS RESTORED BACK TO THE FILE OF THE LD.CIT(A) TO DECIDE ALL THE GROUNDS OF APPEAL ON MERIT IN ACCORDANCE WITH LAW. NEEDLESS TO DIRECT THAT THE LD CIT(A) SHALL GRANT OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE LD.CIT(A) AS AND WHEN THE DATE OF HEARING AND TO PROVIDE ALL NECESSARY EVIDENCE AND INFORMATION WITHOUT ANY FURTHER DELAY AND NOT TO SEEK THE ADJOURNMENT WITHOUT ANY VALID REASONS. ACCORDINGLY THE GROUND OF APPEAL WITH REGARD TO NON-ALLOWING OPPORTUNITY OF HEARING IS ALLOWED. CONSIDERING THE FACTS THAT WE HAVE RESTORED THE APPEAL TO THE FILE OF LD. CIT(A), THEREFORE, THE ADJUDICATION ON THE REMAINING GROUNDS OF APPEAL M/S.ACE RESORTS & INFRASTRUCTURE P. LTD.,, ITA NO.119/SRT/2018 FOR A.Y.2013-14 5 HAVE BECOME ACADEMIC. ACCORDINGLY THE GROUNDS OF APPEAL BY ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER ANNOUNCED AT THE TIME OF HEARING OF APPEAL ON 28TH MAY 2021 AT THE TIME OF HEARING THIS APPEAL IN VIRTUAL MODE. SD/- SD/- (DR ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER SURAT, DATED: 28/05/2021 / SGR COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR TRUE COPY/ BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, ITAT, SURAT