Patna Bakhtiyarpur Tollway Limited, Hyderabad V. Asst. Commissioner of Income Tax, Circle-16(2), Hyderabad

ITA 1296/Hyd/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 9351 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-03-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-A
• Assessment Year: 2016-2017
• Appeal Filed On: 19-08-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUNIL KUMAR PANDEY
• Keywords: Depreciation; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD (THROUGH VIRTUAL HEARING) BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI S.S. GODARA, JUDICIAL MEMBER ITA NO. 1296/HYD/ 2019 ASSESSMENT YEAR: 2016 - 17 PATNA BAKHTIYARPUR TOLLWAY LTD. HYDERABAD. PAN: AAFCP 9577 K VS. ACIT, CIRCLE - 16(2), HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI D.V. ANJANEYULU REVENUE BY: SHRI SUNIL KUMAR PANDEY, DR DATE OF HEARING: 02/03/2021 DATE OF PRONOUNCEMENT: 10 /03/2021 ORDER PER A. MOHAN ALANKAMONY, AM.: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT (A) - 4, HYDERABAD IN APPEAL NO. 10285/11 - 12/WC - 16(2), HYD/CIT (A) - 4/HYD/19 - 20, DATED 26 - 06 - 2019 PASSED U/S. 143(3) R.W.S 250(6) OF THE ACT FOR THE AY 2016 - 17. 2. THE ASSESSEE HAS RAISED THREE GROUNDS IN ITS APPEAL AND THEY ARE EXTRACTED HEREINBELOW FOR REFEREN CE: - 1. THE ORDER OF THE LD. CIT (A) IN CONFIRMING THE AOS ORDER IS ERRONEOUS IN LAW, CONTRARY TO THE FACTS PROBABILITIES OF THE CASE AND AGAINST THE PRINCIPLES OF EQUITY AND NATURAL JUSTICE. 2 2. LD. CIT (A) ERRED IN LAW BY NOT APPRECIATING THE FACT THAT THE COMPANY IS HAVING EXCLUSIVE RIGHT, LICENSE AND AUTHORITY TO CONSTRUCT, OPERATE AND MAINTAIN THE PROJECT TILL 25/09/2029 DURING WHICH PERIOD REVENUE IS GENERATED IN THE FORM OF TOLL COLLECTIONS AND THE SAME PARTAKES NATURE OF THE INTANGIBLE ASSET AND ELIGIBLE FOR DEPRECIATION @ 25% AS HELD BY THE JURISDICTIONAL BENCH OF HONBLE ITAT IN M/S. MOKAMA MUNGER HIGH WAY LTD IN ITA NO. 1729, 2145 & 2146/HYD/2018 , DATED 03/07/2019 AND [2018] 161 DTR 289 M/S. PROGRESSIVE CONSTRUCTIONS LTD VS. ACIT AND BY PUNE BENCH OF HONBLE ITAT [2018] 163 DTR 321 M/S. ASHOKA INFRASTRUCTURE LTD VS. ASST. CIT. 3. FOR THESE AND OTHER REA SONS THAT MAY BE URGED AT THE TIME OF HEARING, THE APPELLANT PRAYS THE HONBLE TRIBUNAL TO KINDLY DELETE THE ADDITION MADE BY AO AND SUSTAINED BY CIT (A). 3. AT THE OUTSET, WE FIND THAT THE LD. CIT (A) HAS PASSED EX - PARTE ORDER BECAUSE NEITHER THE ASSESSEE NOR HIS REPRESENTATIVE APPEARED BEFORE THE LD.CIT(A) . BEFORE US THE LD.AR ARGUED THE CASE ON MERITS AND PRAYED FOR DELETING THE ADDITION MADE BY THE LD.AO WHICH WAS SUSTAINED BY T HE LD.CIT(A). LD. DR, ON THE OTHER HAND, VEHEMENTLY OPPOSED TO THE SUBMISSIONS OF THE LD. AR . 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE MATERIALS ON RECORD. ON EXAMINING THE FACTS OF THE CASE, WE FIND THAT T HE LD. CIT (A) HAD POST ED THE CASE ON SEVERAL OCCASIONS. HOWEVER, NONE APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE CIT(A) ON THE DATES OF HEARING. THEREFORE, THE LD. CIT (A) WAS LEFT WITH NO OTHER OPTION EXCEPT TO ADJUDICATE THE APPEAL EX - PARTE. HOWEVER, WE FIND THAT THE LD .CIT(A) HAD NOT PASSED A SPEAKING ORDER ON MERITS . THEREFORE , IN THE INTEREST OF 3 JUSTICE WE HEREBY REMIT THE MATTER BACK TO THE FILE OF LD. CIT (A) IN ORDER TO CONSIDER THE APPEAL AFRESH ON MERITS BY PROVIDING ONE MORE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. AT THE SAME BREATH, WE 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 MATER IALS ON THE RECORD. IT IS ORDERED ACCORDINGLY. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED HEREINABOVE. PRONOUNCED IN THE OPEN COURT ON 10 TH MARCH, 2021. SD/ - SD/ - (S.S. GODARA) ( A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED: 10 TH MARCH, 2021. O KK COPY TO: - 1. PATNA BAKHTIYARPUR TOLLWAY LTD., C/O. M. ANJANEYULU & CO., CHARTERED ACCOUNTANTS, 30, BHAGYALAKSHMI NAGAR, GANDHI NAGAR, HYDERABAD - 80. 2. ACIT, CIRCLE - 16(2), HYDERABAD. 3. CIT (A) - 4, HYDERABAD. 4. PR. CIT - 4, H YDERABAD. 5. THE DEPARTMENTAL REPRESENTATIVE, HYDERABAD. 6. GUARD FILE.