Neueon Towers Limited, Hyderabad V. Dy. Commissioner of Income Tax , Circle-3(2), Hyderabad

ITA 1575/Hyd/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0871 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 05-07-2021
• Assessment Year: 2009-2010
• Appeal Filed On: 25-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LAKKA BHUSHANAM
• Assessee Lawyers: P MURALI MOHAN RAO
• Keywords: Opportunity of being heard
• Section: 143(3); 115JB; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD (THROUGH VIRTUAL CONFERENCE) BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER IT A NO. 1575 /H/20 19 ASSESSMENT YEAR: 2009 - 10 NEVEON TOWERS LTD., HYDERABAD. PAN AA KCS 7820 F VS. DY. COMMISSIONER OF INCOME - TAX , CIRCLE 3(2), H YDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY: S HRI P. MURALI MOHAN RAO REVENUE BY: S HRI LAKKA BHUSHANAM DATE OF HEARING: 0 5 /0 7 /2021 DATE OF PRONOUNCEMENT: 13 /0 7 /2021 O R D E R PER L.P. SAHU, A.M. : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST CIT( A ), HYDERABADS ORDER , DATED 01 / 0 8 /201 9 INVOLVING PROCEEDINGS U/S 143(3) RWS 254 OF THE INCOME TAX ACT, 1961 ; IN SHORT THE ACT. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE AO COMPLETED THE ASSESSMENT BY ASSESSING THE INCOME OF THE ASSESSEE AT I TA NO. 1575 /HYD /20 19 NEUEON TOWERS LTD., HYDERABAD. : - 2 - : RS. 7,09,40,565/ - AGAINST THE RETURNED INCOME OF RS. 5,60,30,050/ - UNDER NORMAL PROVISIONS OF THE ACT, AND RS. 14,34,89,186/ - U/S 115JB OF THE ACT. 3. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) AND THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE FILED ITS APPEAL MANUALLY. 4. AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE I S IN APPEAL BEFORE THE ITAT. 5. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE MATERIAL ON RECORD AS WELL AS THE ORDERS OF REVENUE AUTHORITIES , WE FIND THAT THE ASSESSEE FILED ITS APPEAL ON 10/06/2016 BEFORE THE LD. CIT(A) ELECTRONICALLY, HOWEVER, THE ASSESSEE HAS FILED THE APPEAL ON 26/04/2016 WITHIN THE TIME BEFORE THE CIT(A) MANUALLY AND NOT ELECTRONICALLY. UNDER SIMILAR CIRCUMSTANCES, THE HON'BLE JURISDICTIONAL HIGH COURT HAS CONSIDERED THE VERY SAME ISSUE IN W.P. NO. 21099/2018 IN THE CASE OF M/S. RAYALASEEMA BULLION AND COMMTRADE PRIVATE LIMITED VS. CIT(A) - 3, HYDERABAD WHEREIN THE HON'BLE HIGH COURT HAS DIRECTED THE ASSESSEE TO E - FILE ITS APPEAL WITHIN THE STIPULATED TIME PRESCRIBED IN THE ORDER AND THE CIT (A) WA S DIRECTED TO CONSIDER THE SAME AND ADJUDICATE THE APPEAL ON MERITS. FOR THE SAKE OF READY REFERENCE, RELEVANT PORTION OF THE ORDER OF THE HON'BLE I TA NO. 1575 /HYD /20 19 NEUEON TOWERS LTD., HYDERABAD. : - 3 - : JURISDICTIONAL HIGH COURT IS EXTRACTED HEREIN BELOW FOR REFERENCE: - 'THE GRIEVANCE OF THE PETITIONER COMPANY IN THIS CASE IS WITH REGARD TO THE ACTION OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 3, HYDERABAD, THE FIRST RESPONDENT HEREIN, IN PASSING ORDER DATED 12/03/2018 IN ITA NO.0152/ITO - 3(2)/HYD/CIT(A) - 3/2016 - 17, IN RELATION TO THE ASSESSMENT YEAR 2013 - 14, WHE REBY THE PETITIONER - COMPANY'S APPEAL WAS DISMISSED IN LIMINI ON THE GROUND THAT IT HAD FAILED TO E - FILE THE SAID APPEAL AS MANDATORILY REQUIRED. HAVING RECEIVED INSTRUCTIONS IN THE MATTER, SRI VINOD KUMAR TADAKAMALLA, LEARNED SENIOR STANDING COUNSEL FOR T HE REVENUE, WOULD INFORM THIS COURT THAT THE ASSESSMENT ORDER UNDER APPEAL BEFORE THE FIRST RESPONDENT WAS DATED 29/03/2016 AND WAS RECEIVED BY THE PETITIONER COMPANY ON 04/04/2016. AGGRIEVED THEREBY, THE PETITIONER COMPANY FILED AN APPEAL MANUALLY ON 03/0 5/2016. WHILE SO, RULE 45 OF THE INCOME TAX RULES, 1962 (FOR BREVITY, THE RULES OF 1961) WAS AMENDED WITH EFFECT FROM 01/03/2016 REQUIRING FILING OF APPEALS IN E - FORMAT. HOWEVER, OWING TO THE GLITCHES IN IMPLEMENTATION OF THIS NEW PROCEDURE, THE CENTRAL B OARD OF DIRECT TAXES, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, ISSUED CIRCULAR NO.20/2016 DATED 26/05/2016 SEEKING TO MITIGATE THE INCONVENIENCE CAUSED TO THE TAXPAYERS ON ACCOUNT OF THE NEW REQUIREMENT OF MANDATORY E - FILING OF APPE ALS AND EXTENDED THE TIME LIMIT FOR FILING OF THE APPEALS WHICH WERE TO BE FILED BY 15/05/2016 UP TO 15/06/2016. THE BOARD FURTHER DIRECTED THAT ALL E - APPEALS FILED WITHIN THE EXTENDED PERIOD SHOULD BE TREATED AS APPEALS FILED WITHIN TIME. IN THE CASE ON HAND, IT APPEARS THAT THE APPEAL FILED BY THE PETITIONER COMPANY WAS NOT RETURNED ON THE GROUND THAT IT HAD NOT BEEN E - FILED IN TERMS OF THE AMENDED I TA NO. 1575 /HYD /20 19 NEUEON TOWERS LTD., HYDERABAD. : - 4 - : RULE 45 OF THE RULES OF 1962. HAVING KEPT THE APPEAL PENDING AFTER NUMBERING IT, THE APPELLATE AUTHORITY UL TIMATELY DISMISSED IT ON THE GROUND THAT IT WAS NOT E - FILED. WHEN THE CENTRAL BOARD OF DIRECT TAXES ITSELF SAW IT FIT TO EXTEND THE TIME FOR E - FILING OF APPEALS, HAD THE APPEAL FILED BY THE PETITIONER COMPANY BEEN RETURNED ON THE GROUND IT WAS NOT FILED AS PER THE DUE PROCEDURE, THE PETITIONER COMPANY COULD HAVE TAKEN STEPS TO FILE IT WITHIN THE EXTENDED TIME. AS THE APPEAL WAS NOT RETURNED TO IT AND WAS NUMBERED, ON THE OTHER HAND, THE PETITIONER COMPANY WAS UNDER THE BELIEF THAT ITS APPEAL WOULD BE ENTERT AINED. THIS BEING THE FACT SITUATION, THE PETITIONER COMPANY CANNOT BE PENALIZED FOR NOT RESORTING TO E - FILING OF ITS APPEAL WITHIN THE EXTENDED TIME AS STIPULATED BY THE BOARD. IN SUCH CIRCUMSTANCES, THE WRIT PETITION IS ALLOWED TO THE EXTENT OF SETTING ASIDE THE ORDER DATED 12/03/2018 PASSED BY THE FIRST RESPONDENT IN ITA NO. 0152/ITO - 3(2)/HYD/CIT(A) - 3/2016 - 17. THE FIRST RESPONDENT SHALL RETURN THE SUBJECT APPEAL TO THE PETITIONER COMPANY WITHIN ONE WEEK FROM THE DATE OF RECEIPT OF A COPY OF THIS ORDER A ND THEREUPON, THE PETITIONER COMPANY SHALL E - FILE ITS APPEAL IN ACCORDANCE WITH THE DUE PROCEDURE WITHIN TWO WEEKS THEREAFTER. IN THE EVENT THE PETITIONER COMPANY FILES ITS APPEAL THROUGH E - FORMAT AS DIRECTED SUPRA, THE APPELLATE AUTHORITY SHALL CONSIDER T HE SAID APPEAL ON ITS OWN MERITS WITHOUT REFERENCE TO THE LIMITATION ASPECT AS IT IS AN ADMITTED FACT THAT THE SAID APPEAL WAS ORIGINALLY FILED WITHIN TIME. THE PETITIONER COMPANY IS AT LIBERTY TO RAISE ADDITIONAL GROUNDS IN THE SAID APPEAL AT THE TIME OF PERSONAL HEARING. PENDING MISCELLANEOUS PETITIONS, IF ANY, SHALL STAND CLOSED IN THE LIGHT OF THIS FINAL ORDER. NO ORDER AS TO COSTS.' 5.1 RESPECTFULLY FOLLOWING THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT (SUPRA), WE OBSERVE THAT SINCE THE I TA NO. 1575 /HYD /20 19 NEUEON TOWERS LTD., HYDERABAD. : - 5 - : ASSE SSEE HAS FILED APPEAL ELECTRONICALLY ON 10/06/2016, THE LD. CIT(A) IS DIRECTED TO DISPOSE OFF THE APPEAL ON MERITS AFTER PROVIDING THE ASSESSEE WITH PROPER OPPORTUNITY OF BEING HEARD WITHIN REASONABLE TIME WITHOUT REFERENCE TO THE LIMITATION ASPECT AS IT IS AN ADMITTED FACT THAT THE APPEAL WAS ORIGINALLY FILED MANUALLY WITHIN THE TIME LIMIT STIPULATED UNDER THE ACT. IT IS ORDERED ACCORDINGLY . THE ASSESSEE IS DIRECTED NOT TO SEEK UNNECESSARY ADJOURNMENTS FOR EARLY DISPOSAL OF THE APPEAL. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES IN ABOVE TERMS. PRONOUNCED IN THE OPEN COURT ON 13 T H JULY , 2021 . SD/ - SD/ - ( S.S. GODARA ) (L . P . SAHU) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDE RABAD, DATED : 13 TH JU LY , 20 2 1 . K V C OPY TO : 1 NEUEON TOWERS LTD., C/O P. MURALI & CO., CAS, 6 - 3 - 655/2/3, 1 ST FLOOR, SOMAJIGUDA, HYDERABAD 82 2 D C IT , CIRCLE 3(2), HYDERABAD . 3 CIT(A) 9, HYDERABAD. 4 PR. CIT 3, HYDERABAD. 5 ITAT, DR, HYDERABAD. 6 GUARD FILE.