Shakthi Constructions, , Hyderabad V. Dy. Commissioner of Income Tax, Circle-11(1), Hyderabad

ITA 1209/Hyd/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 8705 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 18-11-2019
• Assessment Year: 2007-2008
• Appeal Filed On: 13-07-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: P VINOD
• Keywords: Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A - SMC, HYDERABAD BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ITA NO.1209/HYD/2017 ASSESSMENT YEAR: 2007 - 08 M/S. SHAKTI CONSTRUCTIONS, HYDERABAD 013. PAN: ABEFS 8747 H V S. DCIT, CIRCLE - 11(1), IT TOWERS, AC GUARDS, MASABTANK, HYDERABAD - 04. (APPELLANT) (RESPONDENT) ASSESSEE BY: SRI P. VINOD REVENUE BY: SRI R. MOHAN REDDY DR DATE OF HEARING: 18/11/2019 DATE OF PRONOUNCEMENT: 18/11/2019 ORDER THIS APPEAL IS FIELD BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) - 11, HYDERABAD IN APPEAL NO.212/W - 15(2), HYDERABAD/CIT(A) - 11/14 - 15/2016 - 17, DATED 08/03/2017 PASSED U/S. 143(3) R.W.S 250(6) OF THE ACT FOR THE A.Y. 2007 - 08. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ORDER OF THE LD. CIT(A) DISMISSING THE APPEAL OF THE APPELLANT IS ERRONEOUS, ILLEGAL AND UN SUSTAINABLE ON FACTS AND IN LAW APART FROM BEING PASSED IN GROSS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. THE CIT(A) OUGHT TO HAVE GIVEN PROPER OPPORTUNITY TO THE APPELLANT TO REPRESENT ITS CASE. 2. WITHOUT (SIC) TO THE ABOVE GROUND, THE CIT(A) ERRED I N UPHOLDING THE ESTIMATION OF INCOME @ 12.50% MADE BY THE A.O. ALLEGEDLY BASED ON MATERIAL FOUND DURING THE COURSE OF SURVEY OPERATION, FAILING TO APPRECIATE THAT THE INCOME ADMITTED BY THE APPELLANT IS REASONABLE. 2 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) FAILED TO APPRECIATE THAT THE A.O. DID NOT FIND ANY MATERIAL WHICH COULD JUSTIFY HIM TO ESTIMATE THE INCOME AT HIGHER RATE OF 12.50% IN AS MUCH AS THE SAME A.O. ON THE SAME SET OF FACTS (POST SURVEY) ESTIMATED THE INCOME OF THE APPE LLANT AT 10% FOR A.Y. 2006 - 07. 4. THE ORDERS RELIED UPON BY THE A.O. AND THE CIT(A) ARE NOT APPLICABLE TO THE FACTS OF THE APPELLANTS CASE. 5. THE CIT(A) OUGHT TO HAVE APPRECIATED THAT THE INTEREST AND REMUNERATION TO PARTNERS ARE ALLOWANCES PROVIDED UNDE R THE STATUTORY AND THEY ARE ALLOWABLE AS PER THE JUDGMENT OF JURISDICTIONAL HIGH COURT IN THE CASE OF Y. RAMA CHANDRA REDDY. 3. AT THE OUTSET, THE LD. AR SUBMITTED THAT THE LD. CIT (A) HAS PASSED EX - PARTE ORDER WITHOUT PROVIDING AN OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. IT WAS THEREFORE PLEADED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE LD CIT (A) IN ORDER TO PROVIDE ONE MORE OPPORTUNITY TO THE ASSESSEE TO PURSUE THE APPEAL . LD. DR, ON T HE OTHER HAND, VEHEMENTLY OPPOSED TO THE SUBMISSIONS OF THE LD. AR AND ARGUED THAT PROPER OPPORTUNITIES HAD BEEN PROVIDED TO THE ASSESSEE HOWEVER, ON THE GIVEN DATES OF HEARING, NEITHER THE ASSESSEE NOR HIS REPRESENTATIVE APPEARED BEFORE THE LD. CIT (A) BU T ONLY FILED WRITTEN SUBMISSIONS . IT WAS FURTHER SUBMITTED THAT THE LD. CIT (A) HAD NO OTHER OPTION BUT TO PASS EX - PARTE ORDER ON MERITS BASED ON THE MATERIALS AVAILABLE ON RECORD. HENCE, IT WAS PLEADED THAT THE ORDER PASSED BY THE LD. CIT(A) IS IN ORDER AND APPEAL OF THE ASSESSEE MAY BE DISMISSED. 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE MATERIALS ON RECORD. ON EXAMINING THE FACTS OF THE CASE, I FIND MERIT IN THE SUBMISSIONS OF THE LD. DR. FROM THE RECORD IT IS APPARENT THAT 3 NEIT HER THE ASSESSEE NOR HIS REPRESENTATIVE APPEARED BEFORE THE LD. CIT (A) ON THE DATE OF HEARING. THEREFORE, THE LD. CIT (A) WAS LEFT WITH NO OTHER OPTION EXCEPT TO ADJUDICATE THE APPEAL EX - PARTE. IN THIS SITUATION, I DO NOT FIND MUCH STRENGTH IN THE ARGUM ENTS ADVANCED BY THE LD. AR. HOWEVER, CONSIDERING THE PRAYER OF THE LD. AR, IN THE INTEREST OF JUSTICE, I HEREBY REMIT THE MATTER BACK TO THE FILE OF LD. CIT (A) IN ORDER TO CONSIDER THE APPEAL AFRESH BY PROVIDING ONE MORE OPPORTUNITY TO THE ASSESSEE OF BE ING HEARD. AT THE SAME BREATH, I ALSO HEREBY CAUTION THE ASSESSEE TO PROMPTLY CO - OPERATE BEFORE THE LD. CIT (A) IN THE PROCEEDINGS FAILING WHICH THE LD. CIT (A) SHALL BE AT LIBERTY TO PASS APPROPRIATE ORDER IN ACCORDANCE WITH LAW AND MERITS BASED ON THE MA TERIALS ON THE RECORD. AS OBSERVED FROM THE ORDER OF THE LD. CIT (A) IT APPEARS THAT THE ASSESSEE HAS NOT INTIMATED ITS PRESENT ADDRESS TO THE LD. REVENUE AUTHORITIES. THEREFORE, THE ASSESSEE IS HEREBY DIRECTED TO INTIMATE THE LD. REVENUE AUTHORITIES ITS PRESENT ADDRESS FOR FURTHER COMMUNICATION S . 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED HEREINABOVE . PRONOUNCED IN THE OPEN COURT ON 18 TH NOVEMBER, 2019. SD/ - ( A. MOHAN ALANKAMONY ) ACCOUNTANT MEMBER HYDERABAD, DATED:18 TH NOVEMBER , 2019 4 OKK COPY TO: - 1) K. VASANTKUMAR, A.V. RAGHU RAM & P. VINOD, ADVOCATES, 610, BABUKHAN ESTATE, BASHEERBAGH, HYDERABAD 1. 2) DCIT, CIRCLE - 11(1), IT TOWERS, AC GUARDS, MASAB TANK, HYDERABAD - 04. 3) THE CIT(A) - 11, HYDERABAD. 4) THE PR. CIT - 7, HYDERABAD 5) THE DR, ITAT, HYDERABAD 6) GUARD FILE