AIRCEL CELLULAR LIMITED, CHENNAI V. DCIT CORPORATE CIRCLE 1(1), CHENNAI

ITA 1271/CHNY/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3749 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 26-04-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M SRINIVASA RAO
• Assessee Lawyers: C SOWNDARYA
• Keywords: Opportunity of being heard; Revised return; TDS; Set aside
• Section: 143(3); 201(1); 92CA

Judgement Text

, , IN THE INCOME-TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . , , BEFORE SHRI DUVVURU RL REDDY, JUDICIAL MEMBER & SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ I.T.A. NOS.1271, 1272, 1273, 1274 & 1275/CHNY/2019 / ASSESSMENT YEAR:2011-12 TO 2014-15 & 2014-15 M/S. AIRCEL CELLULAR LIMITED, SPENCER PLAZA, 5 TH FLOOR, 769, ANNA SALAI, CHENNAI 600 002. [PAN: AAACR5136R] VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 1(1), CHENNAI 600 034. ( /APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : MS. C. SOWNDARYA, C.A. / RESPONDENT BY : SHRI M. SRINIVASA RAO, CIT / DATE OF HEARING : 25.02.2020 /DATE OF PRONOUNCEMENT : 27.02.2020 / O R D E R PER DUVVURUL RL REDDY, JUDICIAL MEMBER : THESE FIVE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) 4, CHENNAI, DATED 31.01.2019 RELEVANT TO THE ASSESSMENT YEARS 2011-12, 2012-13, 2013-14 AND 2014-15. THE ASSESSEE ALSO PREFERRED AN APPEAL FOR THE ASSESSMENT YEAR 2014-15 AGAINST THE ORDER OF TREATING THE ASSESSEE AS ASSESSEE IN DEFAULT UNDER SECTION 201(1) OF THE INCOME TAX ACT, 1961 [ACT IN SHORT]. BESIDES RAISING VARIOUS GROUNDS, THE ASSESSEE MAINLY ITA NOS. 1271-1275/CHNY/2019 2 CHALLENGED THE EXPARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT AFFORDING SUFFICIENT OPPORTUNITY OF BEING HEARD AND WITHOUT ADDRESSING THE GROUNDS OF APPEALS ON MERITS. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS FILED ITS RETURN OF INCOME 30.11.2011 FOR THE ASSESSMENT YEAR 2011-12 ADMITTING TOTAL INCOME OF .553,99,88,094/- AND SUBSEQUENTLY FILED A REVISED RETURN ON 31.03.2013 REVISING ITS INCOME TO .551,57,40,955/-. THE ASSESSMENT UNDER SECTION 143(3) R.W.S. 92CA OF THE INCOME TAX ACT, 1961 [ACT IN SHORT] WAS COMPLETED BY ASSESSING INCOME OF THE ASSESSEE AT .606,35,07,134/- AFTER MAKING VARIOUS ADDITIONS. SIMILARLY, THE ASSESSMENTS WERE COMPLETED UNDER SECTION 143(3) R.W.S. 92CA OF THE ACT BY ASSESSING THE INCOME OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2012-13 AT .95,27,85,096/- AGAINST THE RETURNED INCOME OF .42,74,07,280/-, FOR THE ASSESSMENT YEAR 2013-14 AT .45,07,36,808/- AGAINST THE RETURNED INCOME OF .16,32,73,820/- AND FOR THE ASSESSMENT YEAR 2014-15 AT .206,73,79,414/- AGAINST THE RETURNED INCOME OF .179,74,56,760/-. 2.1 FURTHER, DURING THE COURSE OF VERIFICATION OF FORM 15CA/CB FILED BY THE ASSESSEE FOR THE FINANCIAL YEAR 2013-14, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD NOT DEDUCTED TDS TO THE EXTENT OF .10,70,86,629/- ITA NOS. 1271-1275/CHNY/2019 3 ON THE PAYMENT MADE TO THE NON-RESIDENTS ON VARIOUS DATES TO VARIOUS ENTITIES. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND SINCE, THE ASSESSEE HAS NOT DEDUCTED TDS, THE ASSESSING OFFICER HELD THAT THE ASSESSEE TO BE AN ASSESSEE IN DEFAULT UNDER SECTION 201(1)(IA OF THE ACT TOWARDS REMITTANCE OF SIGNALLING GATEWAY CHARGES OF .6,78,95,439/- AS WELL AS CELLULAR ROAMING CHARGES OF .3,91,91,190/- BY TREATING THE SAME ARE ROYALTY/FTS, THE ABOVE PAYMENTS WERE BROUGHT TO TAX. 3. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A). SINCE THERE WAS NO DETAILED REPRESENTATION FROM ASSESSEES SIDE AGAINST VARIOUS ADDITIONS, WHILE DISMISSING THE APPEALS BY COMMON ORDER, THE LD. CIT(A) HAS NOT CONCLUDED VARIOUS GROUNDS RAISED IN THE APPEALS ON MERITS. 4. ON BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL FOR ALL THE ASSESSMENT YEARS UNDER CONSIDERATION. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE LD. CIT(A) HAS NOT CONCLUDED VARIOUS GROUNDS RAISED IN THE APPEALS ON MERITS AND PRAYED FOR SUITABLE DIRECTIONS BY GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. PER CONTRA, THE LD. DR HAS SUBMITTED THAT ANY PROCEEDINGS CONTEMPLATED OR PENDING BEFORE ANY AUTHORITY IS NOT BINDING ON THE DEPARTMENT FOR ARRIVING AT A CONCLUSION OF INCOME TAX PROCEEDINGS. IN THE ITA NOS. 1271-1275/CHNY/2019 4 ABSENCE OF ANY DETAILED EXPLANATION/MATERIAL EVIDENCE TO SUBSTANTIATE AGAINST THE ADDITIONS, THE LD. DR SUPPORTED THE ORDER PASSED BY THE LD. CIT(A). 6. WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. AGAINST VARIOUS ADDITIONS MADE IN THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) R.W.S. 92CA OF THE ACT FOR THE ASSESSMENT YEARS UNDER CONSIDERATION, THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A). ON PERUSAL OF THE APPELLATE ORDER, WE FIND THAT WHILE CONCLUDING THE APPELLATE ORDER, THE LD. CIT(A) HAS NOT ADJUDICATED THE ISSUES ON MERITS BASED ON THE FACTS AND CIRCUMSTANCES. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND DIRECT THE LD. CIT(A) TO ADJUDICATE THE ISSUES ON MERITS IN ACCORDANCE WITH LAW AND TO MEET THE ENDS OF JUSTICE, THE ASSESSEE MAY BE GIVEN AN OPPORTUNITY OF BEING HEARD TO PRESENT ITS CASE. THE ASSESSEE SHALL FURNISH DETAILED EXPLANATION/EVIDENCES, AS THE CASE MAY BE, TO SUBSTANTIATE ITS CLAIM FOR ADJUDICATION. FURTHER, THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE LD. CIT(A) AND COOPERATE TO CONCLUDE THE APPELLATE PROCEEDINGS, AS HAS BEEN COMMITTED BEFORE THE TRIBUNAL BY ITS LETTER DATED 25.02.2020. THUS, THE GROUND RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NOS. 1271-1275/CHNY/2019 5 7. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THE 27 TH FEBRUARY, 2020 AT CHENNAI. SD/ - SD/ - (S JAYARAMAN) ACCOUNTANT MEMBER (DUVVURUL RL REDDY) JUDICIAL MEMBER CHENNAI, DATED, THE 27.02.2020 VM/- /COPY TO: 1. /APPELLANT, 2. / RESPONDENT, 3. ( )/CIT(A), 4. /CIT, 5. /DR & 6. /GF.