Pioneer Builders Ltd., Hyd, Hyderabad V. DCIT, Circle-16(3), Hyderabad, Hyderabad

ITA 131/HYD/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6059 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 28-12-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 10-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K J RAO
• Assessee Lawyers: A V RAGHURAM
• Keywords: Principle of natural justice; Condonation of delay
• Section: 143(3); 115JB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER ITA NOS. 131 & 132/HYD/2016 ASSESSMENT YEAR: 2008-09 M/S PIONEER BUILDERS LTD., HYDERABAD. PAN AADCP5327P VS. DY. COMMISSIONER OF INCOME- TAX, HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI A.V. RAGHURAM REVENUE BY : SHRI K.J. RAO DATE OF HEARING : 22-03-2017 DATE OF PRONOUNCEMENT : 22-03-2017 O R D E R PER S. RIFAUR RAHMAN, A.M.: BOTH THESE APPEALS BY THE ASSESSEE ARE DIRECTED AG AINST ORDERS OF THE LEARNED COMMISSIONER OF INCOME-TAX(A) - 4, HYDERABAD, BOTH DATED 04/12/2015 FOR AY 2008-09. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE CO MPANY IS ENGAGED IN THE BUSINESS OF EXECUTING CONTRACTS AND OPERATING TRANSPORT SERVICES. FOR THE YEAR UNDER CONSIDERATIO N, IT DECLARED TOTAL INCOME OF RS. 8,63,75,444/- AND ADMITTED BOOK PROFI TS U/S 115JB AT RS. 9.96 CRORES. THOUGH THERE IS NO DISPUTE WITH RE GARD TO THE BOOK PROFIT, THE AO SOUGHT TO MAKE SOME MINOR ADDITIONS WITH REGARD TO THE INCOME DECLARED UNDER NORMAL PROVISIONS AND ACC ORDINGLY COMPUTED TOTAL INCOME OF THE ASSESSEE AT RS. 9.39 C RORES. CONSEQUENTLY, PENALTY WAS LEVIED U/S 271(1)(C) OF T HE ACT. AGGRIEVED, ASSESSEE PREFERRED APPEALS BEFORE THE CIT(A). 2 ITA NOS. 131 & 132/H/16 PIONEER BUILDERS LTD., HYD. 3. IT MAY BE NOTED THAT IN THE APPEAL FILED AGAINST THE ASSESSMENT ORDER, THERE WAS A DELAY OF 191 DAYS, FOR WHICH, TH E ASSESSEE STATED, IN THE STATEMENT OF FACTS, AS UNDER: DELAY: THE APPELLANT BY SEPARATE AFFIDAVIT PRAY FOR CONDONATION OF DELAY AND PRAY FOR CONDONING THE DELAY AND PASS APPROPRIATE ORDERS. AS COULD BE NOTICED FROM THE ORDERS PASSED BY LD. C IT(A), APPEAL WAS FIXED FOR HEARING ONLY ONCE I.E. ON 04/12/2015. ACC ORDING TO THE FIRST APPELLATE AUTHORITY, NONE APPEARED FOR THE ASSESSEE AND, THEREFORE, SHE DISMISSED BOTH THE APPEALS. 4. WITH REGARD TO THE APPEAL ARISING OUT OF ASSESSM ENT ORDER U/S 143(3) R.WS. 147 OF THE ACT, SHE NOTED THAT ACCORDI NG TO THE ASSESSEE AN AFFIDAVIT WAS FILED SEEKING CONDONATION OF DELAY , SUCH AN AFFIDAVIT BEING NOT AVAILABLE ON RECORD, SHE CHOSE NOT TO CO NDONE THE DELAY AND ACCORDINGLY DISMISSED THE APPEAL. 5. SO FAR AS PENALTY PROCEEDINGS ARE CONCERNED, THO UGH THERE WAS NO DELAY IN FILING THE APPEAL, LD. CIT(A) SOUGHT TO DISMISS THE APPEAL ON THE LIMITED GROUND THAT THE ASSESSEE HAS NOT PER SONALLY APPEARED NOR FILED ANY WRITTEN. IN SUM AND SUBSTANCE, GROUN DS URGED BY THE ASSESSEE ON MERIT WERE NOT GONE INTO. ACCORDINGLY, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. THOUGH SEVERAL GROUNDS WERE URGED BOTH ON MERIT AS WELL AS THE PROCEDURE FOLLOWED BY THE CIT(A) IN DISMISSING OF THE APPEALS EX- PARTE, IN VIOLATION OF PRINCIPLES OF NATURAL JUSTIC E, LD. COUNSEL, APPEARING ON BEHALF OF THE ASSESSEE, HAVING FOCUSSE D OUR ATTENTION ON GROUND NO. 3 URGED BEFORE US, WHICH IS COMMON IN BOTH THE APPEALS; WE REPRODUCE THE SAME FOR IMMEDIATE REFERE NCE. THE CIT(A) FAILED TO APPRECIATE THAT THE AR OF THE APPELLANT HAD ATTENDED THE HEARING OF THE APPEAL SCHEDULED ON 04/12/2015 AND THAT THE LD. CIT(A) WAS NOT AVAILABL E IN HER CHAMBER FOR OFFICIAL REASONS. THE AR WAS INFORMED B Y THE OFFICE 3 ITA NOS. 131 & 132/H/16 PIONEER BUILDERS LTD., HYD. OF THE CIT(A) THAT THE DATES OF HEARING WILL BE RES CHEDULED AND A FRESH NOTICE OF HEARING WILL BE ISSUED. 7. LD. DR, ON THE OTHER HAND, WAS NOT ABLE TO FURNI SH ANY MATERIAL TO CONTRADICT THE VERSION OF THE ASSESSEE. IN OTHER WORDS, THOUGH THE ASSESSEE WAS PRESENT ON THE DATE OF HEARING, OWING TO THE INFORMATION SUPPLIED BY THE OFFICE OF THE CIT(A) P ERSONAL APPEARANCE COULD NOT BE MADE AND IN SUCH MATTERS, PARTICULARLY WHEN IT IS A FIRST POSTING, IT IS THE RESPONSIBILITY OF THE CIT(A) TO VERIFY THE RECORDS AS TO WHETHER ANY AFFIDAVIT WAS FILED SEEKING CONDONATION OF DELAY AND IF IT IS NOT ON RECORD TO SEEK CLARIFICATIONS FROM THE AS SESSEE BEFORE PROCEEDING WITH THE MATTER. THIS APART, THE FIRST APPELLATE AUTHORITYS ROLE IS TO DETERMINE THE CORRECT TAX PAYABLE BY THE ASSESSEE. IT IS THE DUTY TO EXAMINE THE MATTER ON MERIT ALSO WHEREAS CI T(A) MERELY PROCEEDED TO DECIDE THE MATTER EX-PARTE ON THE LIMI TED GROUND THAT NONE APPEARED FOR THE ASSESSEE AND, HENCE, THERE IS NO NEED TO INDEPENDENTLY VERIFY THE CORRECTNESS OF THE ORDERS PASSED BY THE AO. 8. HAVING PERUSED THE RECORD, WE ARE OF THE FIRM VI EW THAT THE ORDERS PASSED BY THE CIT(A) ARE IN VIOLATION OF PRI NCIPLES OF NATURAL JUSTICE IN AS MUCH AS THE SPECIFIC GROUND URGED BY THE ASSESSEE, VIDE GROUND NO. 3, WAS NOT CONTRADICTED BY THE REVENUE, WHICH IMPLIES THAT THOUGH THE ASSESSEE APPEARED ON THE DATE FIXED FOR HEARING, LD. CIT(A) WAS NOT AVAILABLE IN HER CHAMBER, BUT, PROCE EDED TO DISPOSE OF THE APPEAL AS THOUGH THE ASSESSEE OR ITS REPRESE NTATIVE DID NOT FURNISH EITHER AFFIDAVIT SEEKING CONDONATION OF DEL AY, OR WRITTEN SUBMISSION WITH REGARD TO THE MERITS OF THE ADDITI ONS MADE BY THE AO. LD. COUNSEL FOR THE ASSESSEE WAS EVEN PREPARED TO FILE AN AFFIDAVIT WITH REGARD TO THE GROUND URGED BEFORE US , IF THE REVENUE CONTRADICTS THE SAME. HOWEVER, THERE IS NO SUCH CON TRADICTION FROM THE REVENUE. UNDER THE CIRCUMSTANCES WE ARE OF THE VIEW THAT THE ORDERS PASSED BY THE LD. CIT(A) ARE IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND THEREFORE WE DEEM IT FAIR AND REASONABL E TO RESTORE THE MATTERS TO THE FILE OF THE CIT(A) WITH A DIRECTION TO HIM/HER TO 4 ITA NOS. 131 & 132/H/16 PIONEER BUILDERS LTD., HYD. RECONSIDER THE MATTERS IN ACCORDANCE WITH LAW. NEED LESS TO OBSERVE THAT THERE IS A DELAY IN FILING ONE APPEAL AND IF T HE AFFIDAVIT IS NOT AVAILABLE ON RECORD, IT IS THE DUTY OF CIT(A) TO C ALL FOR EXPLANATION OF THE ASSESSEE AND EVEN IF IT IS FILED AT A LATER STA GE, THE SAME HAS TO BE TAKEN ON RECORD. IF THE DELAY IS ON ACCOUNT OF R EASONABLE CAUSE, CIT(A) IS DIRECTED TO DISPOSE OF THE APPEALS ON MER IT. SIMILARLY, EVEN IN PENALTY PROCEEDINGS, NO REASONS WERE ASSIGNED BY THE CIT(A) AND, THEREFORE, WE DIRECT THE CIT(A) TO RECONSIDER THE M ATTER ON MERIT. 9. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 22 ND MARCH, 2017 UPON CONCLUSION OF HEARING. SD/- SD/- (D. MANMOHAN) (S. RIFAUR RAH MAN) VICE PRESIDENT A CCOUNTANT MEMBER HYDERABAD, DATED: 22 ND MARCH, 2017. KV COPY TO:- 1) PIONEER BUILDERS LTD., C/O S/SHRI K. VASANTKUMAR , AV RAGHURAM ADVOCATES, 610, BABUKHAN ESTATE, BASHEERBAGH, H YDERABAD 1. 2) DCIT, CIRCLE 16(3), AAYAKAR BHAVAN, BASHEERBA GH, HYDERABAD. 3) CIT(A) - 4, HYDERABAD 4 PR. CIT - 4 HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDE RABAD. 6) GUARD FILE