M/s Rayapati Power Generation Pvt. Ltd., Hyderabad V. ITO, Hyderabad

ITA 1322/HYD/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9802 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 15-10-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: V SRINIVAS
• Assessee Lawyers: M L NARASIMHAM
• Keywords: Principle of natural justice; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI G.C.GUPTA, VICE PRESIDENT AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ITA NO.1322/HYD/10 : ASSTT . YEAR 2007-08 M/S. RAYAPATI POWER GENERATION P. LTD, HYDERABAD ( PAN AACCR 6187 N ) V/S. INCOME-TAX OFFICER, WARD 3(2), HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI M.L.NARASIMHAM RESPONDENT BY : SHRI V.SRINIVAS O R D E R PER G.C.GUPTA, VICE PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2007-0 8 IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME -TAX(APPEALS). 2. MAIN GROUNDS OF APPEAL OF THE ASSESSEE ARE AS UNDER- (A) THE APPELLATE ORDER DATED 30/7/2010 PASSED BY THE LEARNED COM MISSIONER OF INCOME-TAX(APPEALS) IV WHEREBY THE APP EAL PREFERRED AGAINST THE ASSESSMENT ORDER DATED 11/12/ 2009 PASSED BY THE LEARNED I.T.O., W ARD 3(2), HYDERABAD IS NOT ADMITTED AND IS DISMISSED IS CONTRARY TO LAW, WEIGHT OF EVIDENCE AN D PROBABILITIES OF THE CASE. (B) THE LEARNED APPELLATE AUTHORITY OUGHT TO HAVE GIVEN AN OPPORTUNITY ON 28/7/2010 TO THE APPELLANT HEREIN IN ORDER TO SUBMIT ITS CASE SEEKING CONDONATION OF DELAY OF 54 DAYS IN PREFERRING THE APPEAL AGAINST THE ASST. ORDER DATED 11/12/2009 PASSED BY THE LR. ASSESSING OFFICER. (C) THE LEARNED APPELLATE AUTHORITY ERRED IN CONCL UDING THAT NO FURTHER REASONS FOR DELAY IN FILING OF APPEAL COULD BE EXPL AINED EVEN IF OPPORTUNITY IS GIVEN TO THE APPELLANT AND THE SAID CONCLUSION WILL AMOUNTS TO VIOLATION OF NATURAL JUSTICE AND DEPRIVI NG THE OPPORTUNITY OF FAIR HEARING. (D) THE LEARNED APPELLATE AUTHORITY ERRED IN CONCL UDING THAT THERE IS A DELAY OF 76 DAYS EVEN THOUGH THE FACTS ARE CLEARLY ESTABLISHING THAT ITA NO.1322./HYD/1 0 M/S. RAYAPATI POWER GENERATION P. LTD, HYDERABAD 2 THE DELAY IS ONLY 54 DAYS AND THE APPELLANT HEREIN HAS SHOWN SUFFICIENT CAUSE FOR CONDONATION OF THE SAID DELAY. ' 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY BEF ORE THE CIT(A) AND NO OPPORTUNITY WAS GIVEN TO THE ASSESSEE BY THE CIT(A) TO E XPLAIN THE DELAY OF 54 DAYS IN FILING THE APPEAL BEFORE THE CIT(A). ON THE DATE OF HEARING, ASSESSEE HAS FILED A WRITTEN APPLICATION REQUESTING FOR ADJOURNING THE APPEAL AS THEIR CHARTERED ACCOUNTANT HOLDING POWER OF ATTORNEY WAS OUT OF STATIO N ON THE DATE OF HEARING BEFORE HIM. HE SUBMITTED THAT THE ISSUE BE SET ASIDE T O THE FILE OF THE CIT(A) TO CONSIDER THE ISSUE OF CONDONATION OF DELAY IN FILING TH E APPEAL BEFORE HIM. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE OPPOSED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THA T THE ASSESSEE WAS GIVEN OPPORTUNITY BY THE CIT(A) TO EXPLAIN THE REASO N FOR THE DELAY IN FILING THE APPEAL BEFORE HIM. HE SUBMITTED THAT THE ASSESSEE DID N OT ATTEND THE ASSESSMENT PROCEEDINGS INSPITE OF NUMBER OF OPPORTUNITIES A LLOWED BY THE ASSESSING OFFICER TO THE ASSESSEE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND TH AT THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE AS BEING BARRED BY LIMITATION BY 76 DAYS. THE ASSESSEE HAS CLAIMED BEFORE US THAT THE DELAY IN FILING THE APPEAL BEFORE THE CIT(A) WAS IN FACT 54 DAYS ONLY AND NOT 7 6 DAYS AS MENTIONED BY THE CIT(A) IN HIS ORDER. THE ASSESSEE HAS FILED COPY OF THE AP PLICATION DATED 28.7.2010 FILED BY THE ASSESSEE BEFORE THE CIT(A) REQUE STING FOR ADJOURNMENT OF THE HEARING OF THE APPEAL, AS THEIR CHARTERED ACCOUNTA NT HOLDING POWER OF ATTORNEY WAS STATED TO BE OUT OF STATION. IN THE FA CTS OF THE CASE, WE ARE OF THE VIEW THAT THE ASSESSEE SHOULD BE PROVIDED OPPORTUNITY TO EXPLAIN THE REASONS FOR THE DELAY IN FILING THE APPEAL BEFORE THE CIT(A). A CCORDINGLY, THE ORDER OF THE CIT(A) IS SET ASIDE TO THE FILE WITH A DIRECTION TO PA SS A DE NOVO ORDER IN ACCORDANCE WITH LAW AFTER PROVIDING OPPORTUNITY OF HEA RING TO THE PARTIES AND TO ITA NO.1322./HYD/1 0 M/S. RAYAPATI POWER GENERATION P. LTD, HYDERABAD 3 THE ASSESSEE TO EXPLAIN THE REASONS FOR THE DELAY IN PRESE NTING THE APPEAL BEFORE HIM. WE DIRECT ACCORDINGLY. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 18.2.2011 SD/- SD/- (CHANDRA POOJARI) (G.C.GUPTA) ACCOUNTANT MEMBER VICE PRESIDENT DT/- 18 TH FEBRUARY, 2011 COPY FORWARDED TO: 1. M/S. RAYAPATI POWER GENERATION P. LTD, C/O. M/S. M.L.NARASIMHAM, CH.SRINIVASA RAO, M.SESHU, CH.SURYANARAYANA, ADVOCATES, B-11, PRIME DWELLING APARTMENTS, ROAD NO.12, BANJARA HILLS, HYDERABAD-34 2. INCOME TAX OFFICER, WRD-3(2) HYDERABAD 3. COMMISSIONER OF INCOME-TAX(APPEALS)-IV, HYDERABAD. 4. COMMISSIONER OF INCOME-TAX III, HYDERABAD 5. THE DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S