M/S HOTEL GOUDAVAN P LTD, Jaipur V. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-6, Jaipur

ITA 1299/JPR/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4692 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 22-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C GUPTA
• Keywords: Depreciation; Period of limitation; Reasonable cause

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,A JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 1299 &1300/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2013-14 & 2014-15 M/S HOTEL GAUDAVAN PVT. LTD., FORT RAJWADA (A UNIT OF HOTEL GAUDAVAN PVT. LTD.), HOTEL COMPLEX, JODHPUR BARMER LINK ROAD, JAISALMER. CUKE VS. THE ACIT, CIRCLE-6, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAACH 3581 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P.C. PARWAL (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI K.C. GUPTA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 06/02/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 08/02/2019 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGA INST TWO SEPARATE ORDERS OF LD. CIT(A), JAIPUR BOTH DATED 2 8.08.2018 FOR THE ASSESSMENT YEARS 2013-14 & 2014-15. THE ASSESSEE HA S RAISED COMMON GROUNDS IN THESE APPEALS. THE GROUNDS RAISED FOR THE ASSESSMENT YEAR 2013-14 ARE REPRODUCED AS UNDER:- ITA NO. 1299&1300/JP/2018 M/S HOTEL GAUDAVAN PVT. LTD. VS. ACIT 2 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN DISMISSING THE APPEAL IN LIMINIE ON THE GROUND THAT APPEAL IS NOT E-FILED AND THUS INVALID AND NOT MAINTAINABLE. 1.1 THE LD. CIT(A) WHILE DISMISSING THE APPEAL EX-P ARTE HAS OBSERVED THAT ASSESSEE HAS NOT COMPLIED WITH THE VA RIOUS NOTICES AND THE LETTER ISSUED ON 13.08.2018 AND EVEN THE CH ARTERED ACCOUNTANT WHOSE POA IS ON RECORD HAS NOT MADE ANY COMPLIANCE EVEN WHEN INFORMED ON 21.08.2018 WHEREAS DUE TO THE INSOLVENCY AND BANKRUPTCY PETITION FILED AGAINS T THE ASSESSEE, THE NATIONAL COMPANY LAW TRIBUNAL VIDE ITS ORDER DT . 13.12.2017 DIRECTED THAT THE SHARES OF EXISTING SHAREHOLDERS A ND THE MANAGEMENT OF COMPANY IS TO BE TRANSFERRED/LOOKED A FTER BY JFC FINANCE INDIA LTD. AND THEREFORE, THE ADDRESS OF TH E COMPANY AS WELL AS THE CA CHANGED BECAUSE OF WHICH COMPLIANCE COULD NOT BE MADE. 2. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN NOT DECIDING THE APPEAL ON MERIT EVEN WHEN THE ISSUE UNDER APPEA L HAS BEEN DECIDED BY IN FAVOUR OF THE ASSESSEE BY HONBLE ITA T IN EARLIER YEARS AND ALSO BY LD. CIT(A) IN AY 2011-12. 3. THE ASSESSEE CRAVES TO AMEND, ALTER AND MODIFY A NY OF THE GROUNDS OF APPEAL. 4. THE APPROPRIATE COST BE AWARDED TO HE ASSESSEE. 2. THUS, THE ASSESSEE HAS CHALLENGED THE IMPUGNED O RDERS OF THE LD. CIT(A) WHEREBY THE APPEALS OF THE ASSESSEE WERE DIS MISSED IN LIMINE FOR WANT OF E-FILING OF APPEAL AS WELL AS NON APPEA RANCE ON BEHALF OF THE ASSESSEE. 3. THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT SI NCE THE ASSESSEE WAS UNDER INSOLVENCY RESOLUTION PROCEEDINGS BEFORE THE NATIONAL COMPANY LAW TRIBUNAL AND THE ADDRESS OF THE ASSESSE E WAS ALSO ITA NO. 1299&1300/JP/2018 M/S HOTEL GAUDAVAN PVT. LTD. VS. ACIT 3 CHANGED, THEREFORE, AFTER FILING OF THE APPEAL THE AUTHORIZED REPRESENTATIVE COULD NOT ATTEND THE HEARING BEFORE THE LD. CIT(A). HE HAS FURTHER SUBMITTED THAT THE NOTICE ISSUED BY THE LD. CIT(A) WERE NOT RECEIVED BY THE ASSESSEE DUE TO THE FACTS AND CIRCU MSTANCES THAT THE PROCEEDINGS UNDER INSOLVENCY AND BANKRUPTCY CODE (I BC) WERE PENDING BEFORE THE NATIONAL COMPANY LAW TRIBUNAL AND VIDE O RDER DATED 13.12.2017 THE RESOLUTION PLAN OF JFC FINANCE (INDI A) LTD. WAS APPROVED WHICH HAS TAKEN OVER THE MANAGEMENT AS WEL L AS THE ASSETS OF THE ASSESSEE COMPANY UNDER THE RESOLUTION. THE L D. AR HAS THUS SUBMITTED THAT NON APPEARANCE WAS NEITHER DELIBERAT E NOR INTENTIONAL BUT DUE TO BE UNAVOIDABLE CIRCUMSTANCES. FURTHER, T HE LD. CIT(A) HAS DISMISSED THE APPEALS BEING NOT MAINTAINABLE FOR WA NT OF E-FILING, HOWEVER, THE ASSESSEE IS READY TO FILE THE APPEAL E LECTRONICALLY IF ONE OPPORTUNITY IS GIVEN TO THE ASSESSEE. THE LD. AR FU RTHER SUBMITTED THAT THE ISSUE ON MERITS IS COVERED IN FAVOUR OF THE ASS ESSEE BY ORDER OF THIS TRIBUNAL FOR THE ASSESSMENT YEAR 2011-12 WHICH HAS BEEN UPHELD BY THE HONBLE JURISDICTIONAL HIGH COURT. THE ASSESSIN G OFFICER HAS ALSO ACCEPTED THIS FACT THAT THE ISSUE WAS DECIDED IN FA VOUR OF THE ASSESSEE BY THE TRIBUNAL, HOWEVER, SINCE THE REVENUE HAS CHA LLENGED THE ORDER BEFORE THE HONBLE JURISDICTIONAL HIGH COURT, THERE FORE, THE AO AGAIN ITA NO. 1299&1300/JP/2018 M/S HOTEL GAUDAVAN PVT. LTD. VS. ACIT 4 MADE DISALLOWANCE. HENCE, THE LD. AR HAS SUBMITTED THAT THE IMPUGNED ORDER OF THE LD. CIT(A) MAY BE SET ASIDE. 4. ON THE OTHER HAND, THE LD. DR HAS RELIED UPON TH E ORDERS OF THE LD. CIT(A) AND SUBMITTED THAT DESPITE SUFFICIENT OP PORTUNITIES TO THE ASSESSEE FAIL TO APPEAR BEFORE THE LD. CIT(A) AND A LSO NOT FILE THE APPEALS AS PER RULE 45 OF INCOME TAX RULES AND THER EFORE, IN THE ABSENCE OF E-FILING OF THE APPEAL, THE SAME ARE NOT MAINTAINABLE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIALS ON RECORD. AT THE OUTSET, WE NOTE THAT TH E ASSESSEE WAS UNDERGOING INSOLVENCY AND BANKRUPTCY RESOLUTION PRO CEEDINGS PENDING BEFORE THE NATIONAL COMPANY LAW TRIBUNAL AND FINALL Y VIDE ORDER DATED 13.12.2017 THE RESOLUTION PLAN WAS APPROVED BY THE NATIONAL COMPANY LAW TRIBUNAL. THEREFORE, THERE WAS CHANGED IN THE A DMINISTRATIVE AND MANAGEMENT OF THE ASSESSEE AND DUE TO THE BANKRUPTC Y PROCEEDINGS GOING ON THERE WAS NON ATTENDANCE OF THE PROCEEDING S BEFORE THE LD. CIT(A). THUS, WE FIND THAT THE ASSESSEE HAS EXPLAIN ED A REASONABLE CAUSE FOR NOT APPEARING BEFORE THE LD. CIT(A). WE F IND THAT THE ISSUE OF DISALLOWANCE DEPRECIATION IS UNDISPUTED COVERED IN FAVOUR OF THE ASSESSEE. THE LD. CIT(A) HAS ALSO RAISED OTHER OBJE CTION OF NON FILING OF THE APPEAL THROUGH ELECTRONICALLY. THOUGH THE APPEA L FILED MANUAL WERE ITA NO. 1299&1300/JP/2018 M/S HOTEL GAUDAVAN PVT. LTD. VS. ACIT 5 WITHIN THE PERIOD OF LIMITATION, HOWEVER NOT FILING OF THE APPEAL ELECTRONICALLY RESULTED DEFECTS IN FILING OF THE AP PEAL BY THE ASSESSEE BEFORE THE LD. CIT(A). THEREFORE, THE ASSESSEE WAS REQUIRED TO REMOVE THE SAID DEFECT BY FILING THE APPEAL ELECTRONICALLY HOWEVER, SINCE THE LD. CIT(A) HAS DISMISSED THE APPEAL IN LIMINE, THEREFOR E, THE ASSESSEE COULD NOT AVAIL THIS OPPORTUNITY OF REMOVING THE DEFECT. ACCORDINGLY, WE GRANT ONE MORE OPPORTUNITY TO THE ASSESSEE TO FILE THE AP PEAL ELECTRONICALLY AND ALSO PRESENT ITS CASE BEFORE THE LD. CIT(A). HE NCE, WE SET ASIDE THE IMPUGNED ORDERS OF THE LD. CIT(A) AND REMIT THE MAT TERS TO THE RECORD OF THE LD. CIT(A) FOR GRANTING ONE MORE OPPORTUNITY OF HEARING TO THE ASSESSEE AS WELL AS TO FILE THE APPEALS ELECTRONICA LLY AND THEN, DECIDE THE APPEALS FOR BOTH YEARS ON MERITS. IN THE RESULT, BOTH APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 08/02/2019 SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 08/02/2019. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: ITA NO. 1299&1300/JP/2018 M/S HOTEL GAUDAVAN PVT. LTD. VS. ACIT 6 1. VIHYKFKHZ@ THE APPELLANT- M/S HOTEL GAUDAVAN PVT. LTD., JAISAL MER. 2. IZR;FKHZ@ THE RESPONDENT- ACIT, CIRCLE-6, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 1299 &1300/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR