TECH Sharp Engineers Pvt Ltd, Chennai V. ACIT, Corp Cir 3(1), Chennai

ITA 152/CHNY/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3323 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 21-01-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: M KARUNAKARAN
• Keywords: Opportunity of being heard
• Section: 40(a)(ia)

Judgement Text

, , IN THE INCOME-TAX APPELLATE TRIBUNAL B BENCH, CHENNAI , . , BEFORE SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY, JUDICIAL MEMBER ./ I.T.A. NO. 152/CHNY/2019 / ASSESSMENT YEAR: 2013-14 M/S. TECH SHARP ENGINEERS PVT LTD ., OLD NO.17,NEW NI.10,M.BLOCK, 8 TH STREET, ANNA NAGAR, CHENNAI 600 102. [PAN:AAACT 6096 Q] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX , CORPORATE CIRCLE 3(1), CHENNAI. ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : SHRI M.KARUNAKARAN, ADVOCATE / RESPONDENT BY : SHRI GURU BASHYAM, ADDL. CIT / DATE OF HEARING : 28.11.2019 /DATE OF PRONOUNCEMENT : 29.11.2019 / O R D E R PER DUVVURU RL REDDY, JUDICIAL MEMBER: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-7, CHENNAI DATED 12.12.2018 RELEVANT TO THE ASSESSMENT YEAR 2013-14. THE GROUNDS RAISED BY THE ASSESSEE ARE REPRODUCED AS UNDER: 1. THE LD. CIT(A) ERRED IN DISMISSING THE APPEAL FILED BY THE APPELLANT ELECTRONICALLY FOR WANT OF NON-APPEARANCE. 2. THE LD. CIT(A) HAVING ACCEPTED THE E-FILED APPEAL OUGHT TO HAVE DECIDED THE SAME ON MERITS AND SHOULD NOT HAVE DISMISSED THE APPEAL FOR NON APPEARANCE TO HEARING DATES. I.T.A. NO. 152/CHNY/19 2 3. THE APPELLANT SUBMITS THAT IT HAD NOT RECEIVED THE NOTICES OR OTHERWISE THE APPELLANT WOULD NOT HAVE RESPONDED TO THE NOTICES ESPECIALLY WHEN THEY ARE INTERESTED IN PURSUING THE APPEAL TO GET THE ADDITION MADE IN THE ASSESSMENT DELETED. 4. THE APPELLANT SUBMITS THAT ON ONLY ONE OCCASION, THE APPELLANT HAVING RECEIVED THE NOTICE COULD NOT APPEAR AS THE DIRECTOR WAS OUT OF STATION AND HE COULD NOT CONTACT THE ADVOCATE TO REPRESENT THE ABOVE APPEAL. 5. THE APPELLANT SUBMITS THAT THE NON RESPONSE TO THE HEARING NOTICES WAS DUE TO CIRCUMSTANCES BEYOND THE CONTROL FO THE APPELLANT AND NOT WILLFUL NOR WANTON. 6. THE APPELLANT THEREFORE PRAY THAT ANOTHER ADEQUATE OPPORTUNITY MAY BE GIVEN TO THE APPELLANT TO REPRESENT THE APPEAL BEFORE THE CIT(A). 7. THE APPELLANT SUBMITS THAT THE AO IS NOT JUSTIFIED IN DISALLOWING RS.25,76,914/- U/S.40(A)(IA) ON THE GROUNDS RAISED IN THE APPEAL FILED ON 26.09.2017 THROUGH E-FILING WHICH IS PENDING ADJUDICATION. THE GROUNDS RAISED BEFORE THE CIT(A) ON MERITS MAY BE READ AS PART AND PARCEL OF THIS GROUNDS OF APPEAL. 8. THE AO IS NOT JUSTIFIED IN APPLYING THE PROVISIONS OF THE SECTION 40(A)(IA) OF THE ACT TO THE APPELLANTS CASE IN VIEW OF THE PROVISO TO SECTION 40(A)(IA) AND ALSO IN VIEW OF THE DECISION OF THE SUPREME COURT IN THE CASE OF HINDUSTAN COCO COLA LTD. AS THE PLAYEE VIZ. INDIAN OIL CORPORATION WOULD HAVE DISCHARGED ITS TAX OBLIGATION. 9. THE LD.CIT(A) SHOULD HAVE CONSIDERED THE ORDER OF THE HONOURABLE ITAT IN THE APPELLANTS OWN CASE FOR THE ASSESSMENT YEAR 2012-13 WHEREIN THE SIMILAR DISALLOWANCE MADE BY THE AO WAS DELETED. 10. THE APPELLANTS THEREFORE PRAY THAT THE APPEAL MAY BE RESTORED BACK TO THE CIT(A) FOR RE-HEARING BY GRANTING ONE MORE OPPORTUNITY TO THE APPELLANT TO REPRESENT HIS CASE AND TO DELETE THE ADDITION OF RS.25,78,914/- MADE U/S.40(A)(IA) AND RENDER JUSTICE. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE THAT THE ASSESSEE IS A COMPANY ENGAGED IN THE BUSINESS OF MECHANICAL CONSTRUCTION AND FILED IT RETURN OF INCOME ON 19.09.2013 FOR ASSESSMENT YEAR 2013-14 DECLARING AN I.T.A. NO. 152/CHNY/19 3 INCOME OF RS.2,14,13,070/-. THE ASSESSMENT WAS COMPLETED U/S.143(3) OF THE ACT ON 25.02.2016 WHEREIN THE ASSESSING OFFICE MADE A DISALLOWANCE OF INTEREST U/S.40(A)(IA) OF THE ACT RS.25,78,914/- ON THE GROUND THAT THE ASSESSEE HAS NOT FURNISHED PROOF OF DEDUCTION OF TAX AT SOURCE ON SUCH PAYMENT AND DISALLOWED THE INTEREST CLAIM. AGGRIEVED WITH THE ORDER OF THE AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD.CIT(A). ON APPEAL, LD.CIT(A) CONFIRMED THE ADDITION MADE BY THE AO, SINCE THE ASSESSEE FAILED TO APPEAR BEFORE HIM. BEING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE TRIBUNAL. 3. BEFORE US, LD.A.R SUBMITTED THAT THE ASSESSEE HAS NOT RECEIVED ANY NOTICE FROM THE LD.CIT(A). FURTHER, THE LD.A.R SUBMITTED THAT THE LD.CIT(A) HAS NOT ADJUDICATED THE ISSUES RAISED IN THE APPEAL ON MERITS AND SIMPLY HE MENTIONED THAT THE ASSESSEE IS NOT SHOWN ANY INTEREST TO PROSECUTE THE APPEAL. THE LD.A.R PRAYED THAT LD.CIT(A) MAY BE DIRECTED TO ADJUDICATE THE ISSUE ON MERITS BY GIVING ONE MORE OPPORTUNITY FOR PRESENTING ITS CASE BEFORE THE FIRST APPELLATE AUTHORITY. 4. ON THE OTHER HAND, THE LD.D.R SUBMITTED THAT THE LD.CIT(A) HAS GIVEN SUFFICIENT OPPORTUNITY TO THE ASSESSEE, BUT HE FAILED TO APPEAR BEFORE HIM AND SUBSTANTIATE ITS CASE. THEREFORE, THE LD.D.R PLEADED BEFORE US THAT THE ORDERS PASSED BY THE LD.CIT(A) BE CONFIRMED. I.T.A. NO. 152/CHNY/19 4 5. WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. ADMITTEDLY, THE LD.CIT(A) HAS NOT PASSED THE ORDER ON MERITS AND ALSO NOT CONSIDERED THE EARLIER ASSESSMENT YEARS ORDER PASSED BY THE LD.CIT(A) IN ASSESSEE'S OWN CASE. APART FROM THIS, THE DEPARTMENT HAS NOT FILED ANY PROOF OF SERVICE OF NOTICE ON THE ASSESSEE. THEREFORE, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY BE GIVEN TO THE ASSESSEE TO SUBSTANTIATE ITS CASE. THUS, WE REMIT THE MATTER BACK TO THE FILE OF LD.CIT(A) TO ADJUDICATE THE ISSUE ON MERITS BY AFFORDING ONE MORE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PRAYED BEFORE THE TRIBUNAL. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THE 29 TH NOVEMBER, 2019. SD/- SD/- (RAMIT KOCHAR) ACCOUNTANT MEMBER (DUVVURU RL REDDY) JUDICIAL MEMBER CHENNAI, DATED, 29.11.2019 KS SUNDARAM /- /COPY TO: 1. / APPELLANT, 2. / RESPONDENT, 3. ( ) /CIT(A), 4. /CIT, 5. /DR & 6. /GF.