Gennex Laboratories Ltd., Hyd, Hyderabad V. ACIT, Cirlce-2(3), Hyd, Hyderabad

ITA 191/HYD/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6041 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-03-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 01-12-2016
• Assessment Year: 2001-2002
• Appeal Filed On: 22-02-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Assessee Lawyers: LAXMINIWAS SHAR MA
• Keywords: Depreciation; Principle of natural justice; Additional evidence; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 143(3); 92; 191

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER ITA NOS. 191 & 192/HYD/2016 ASSESSMENT YEARS: 2001-02 & 2002-03 GENNEX LABORATORIES LTD., HYDERABAD. PAN AABCP 3078M VS. ASST.COMMISSIONER OF INCOME- TAX, CIRCLE 2(3), HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI LAXMINIWAS SHARMA REVENUE BY : SMT. SUMAN MALIK DATE OF HEARING : 06-03-2017 DATE OF PRONOUNCEMENT : 24-03-2017 O R D E R PER S. RIFAUR RAHMAN, A.M.: THESE TWO APPEALS OF THE ASSESSEE ARE DIRECTED AGA INST SEPARATE ORDERS OF THE LEARNED COMMISSIONER OF INCO ME-TAX(A) - 2,(IN SHORT CIT(A), HYDERABAD, BOTH DATED, 30/11/2015 FO R AY 2001-02 AND 2002-03. AS IDENTICAL ISSUE IS INVOLVED IN THESE A PPEALS, THEY WERE CLUBBED AND HEARD TOGETHER AND, THEREFORE, FOR THE SAKE OF CONVENIENCE, A COMMON ORDER IS PASSED. 2. THE ASSESSEE FILED THESE TWO APPEALS WITH A DELA Y OF 3 DAYS. A CONDONATION PETITION WAS FILED IN THIS CONNECTION A LONG WITH AN AFFIDAVIT STATING THAT THE DELAY WAS NOT INTENTIONA L AND THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE. AS THE ASSESSEE IS PREVENTED BY SUFFICIENT REASON, WE CONDONE THE SAID DELAY AND AD MIT THE APPEALS FOR ADJUDICATION. 2 ITA NOS. 191 & 192/H/16 GENNEX LABORATORIES LTD. 2. BRIEFLY THE FACTS AS EMANATED FROM AY 2001-02 AR E THAT THE ASSESSEE IS ENGAGED IN THE MANUFACTURE OF BULK DRUG S. ASSESSMENT U/S.143(3) OF THE ACT FOR THE ASST.YEAR 2001-02 WAS COMPLETED BY THE AO ON 19-03-2004 ASSESSING INCOME AT RS.73,71,160/- . SUBSEQUENTLY, ASSESSMENT WAS REOPENED U/S.147 AND ASSESSMENT U/S. 143(3) R.W.S.147 WAS COMPLETED ON 22-12-2006 ASSESSING INC OME AT RS.69,78,445/- BY DISALLOWING DEPRECIATION OF RS.15 ,75,000/-. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE THEN CIT(A) -III, HYDERABAD. THE SAID APPEAL WAS DISMISSED BY THE THEN CIT(A)-II I, HYDERABAD VIDE ORDER NO. ITA NO. 155/R-16/AC2(3)/CITV/2005-06 . THE ASSESSEE PREFERRED FURTHER APPEAL BEFORE HON'BLE ITAT. THE H ON'BLE ITAT VIDE ITS COMMON ORDER DATED 30-10-2009 FOR THE ASST.YEAR S: 2001-2002 AND 2002-03 HAD SET ASIDE THE ASSESSMENTS WITH A DI RECTION THAT THE AO SHOULD ADMIT THE EVIDENCE FILED BY THE ASSESSEE BEFORE CIT(A) AND DECIDE THE ISSUE DE NOVO. IN OBEDIENCE TO THE DECIS ION OF HON'BLE ITAT, THE AO COMPLETED THE ASSESSMENT U/S.143(3) R. W.S 254 OF THE ACT ON 30.12.2010 THEREBY DISALLOWING DEPRECIATION OF RS.15,75,000/- CLAIMED BY THE ASSESSEE. 3. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE P REFERRED AN APPEAL BEFORE THE CIT(A). 4. THE CIT(A) OBSERVED THAT IN SPITE OF SUFFICIENT OPPORTUNITIES GRANTED, NEITHER THE ASSESSEE NOR ITS AUTHORIZED RE PRESENTATIVE ATTENDED ON THE DATES OF HEARING. HE FURTHER OBSERV ED THAT THE ASSESSEE HAS NOT EVEN FURNISHED ANY DETAILS OR MATE RIAL WITH REGARD TO THE ISSUES RAISED IN APPEAL. HE, THEREFORE, FOLL OWING VARIOUS CASES INCLUDING THE CASE OF CIT VS. MULTIPLAN (INDIA) PVT . LTD. 38 ITR 320 (DEL.) DISMISSED THE APPEAL OF THE ASSESSEE. 3 ITA NOS. 191 & 192/H/16 GENNEX LABORATORIES LTD. 4.1 EVEN ON MERITS ALSO, HE OBSERVED THAT IN SPITE OF SUFFICIENT OPPORTUNITIES PROVIDED TO THE ASSESSEE, NEITHER THE ASSESSEE NOR ITS AR FURNISHED ANY EVIDENCE REBUTTING THE CONCLUSIONS DRAWN BY THE AO. THEREFORE, THE CIT(A) HELD THAT THE AO IS JUSTI FIED IN DISALLOWING THE DEPRECIATION CLAIM OF RS. 15,75,000/- ON COMPUT ERS. HE ACCORDINGLY CONFIRMED THE DISALLOWANCE MADE BY THE AO. 5. AGGRIEVED BY THE ORDER OF THE CIT(A), THE ASSESS EE IS IN APPEAL BEFORE US RAISING THE FOLLOWING GROUNDS OF APPEAL, WHICH ARE COMMON IN BOTH THE APPEALS: 1. THE LEARNED CIT(A) ERRED IN FACTS AND LAW WHILE PASSING THE ORDER EXPARTE. 2. THE LEARNED CIT (A) ERRED IN COMING TO THE 'CONC LUSION THAT ASSESSEE IS NOT INTERESTED IN PROSECUTING THE APPEA L. IF FACT THE APPEAL PAPER WERE HANDED OVER TO ADVOCATE WHO DID N OT APPEAR ON THE DATE OF POSTING APPEAL. ASSESSEE NOTICED THE SAME ONLY ON RECEIPT OF APPEAL ORDER. 3. THE LEARNED CIT (A) ERRED IN CONFIRMING THAT THE PARTIES GLOBAL TELENET LTD AND AMI COMPUTERS (I) LTD DO NOT EXIST INSPITE THE ASSESSEE FILED THEIR CERTIFICATE OF INCORPORATION, SALES TAX REGN. NO. ETC.,. 4. THE CIT(A) ERRED IN NOT CONSIDERING THAT ASSESSI NG OFFICER HAS NOT GIVEN ANY OPPORTUNITY TO CROSS EXAMINE THE PERS ONS FROM WHOM THE STATEMENTS WERE RECORDED. HENCE IT AMOUNT TO DENIAL OF NATURAL JUSTICE. 5. ANY OTHER GROUND THAT WILL BE RAISED OR FILED ON OR BEFORE THE APPEAL HEARING. 6. CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL FACTS ON RECORD. IT IS RELEVANT TO NOTE THAT THIS IS SECO ND ROUND OF APPEAL PROCEEDINGS. THE COORDINATE BENCH OF THIS TRIBUNAL SET ASIDE THE CASE TO THE FILE OF THE AO TO REDO THE ASSESSMENT BASED ON THE MATERIALS/ADDITIONAL EVIDENCE FILED BEFORE THE CIT( A), WHICH ACCORDING TO THE ASSESSEE, CIT(A) HAS FAILED TO CONSIDER THE SAME WHILE 4 ITA NOS. 191 & 192/H/16 GENNEX LABORATORIES LTD. ADJUDICATION. BASED ON THE ABOVE DIRECTION, AO HAS ISSUED SEVERAL NOTICES AND ASSESSEE CHOSE NOT TO APPEAR (REASONS B EST KNOWN TO ASSESSEE) BEFORE THE AO EVEN THOUGH SEVERAL OPPORTU NITIES WERE EXTENDED TO ASSESSEE. AO COMPLETED THE ASSESSMENT B ASED ON THE INFORMATION AVAILABLE ON RECORD AND FURTHER ENQUIRI ES CONDUCTED WITH THE HELP OF DDIT, KOLKATTA. THESE ENQUIRIES HAVE SH OWN THAT THESE WERE BOGUS COMPANIES. THE ASSESSEE HAS NOT REPRESEN TED OR CLARIFIED THE DETAILS BEFORE THE AO. AGGRIEVED WITH THE ORDER OF THE AO, ASSESSEE FILED APPEAL BEFORE THE CIT(A) AND AGAIN C HOSE NOT TO PROCEED WITH APPEAL PROCEEDINGS BY NEGLECTING THE H EARING NOTICE. LD. CIT(A) HAS DISMISSED THE APPEAL DUE TO NON-PROSECUT ION. AGGRIEVED WITH THE ORDER OF CIT(A), ASSESSEE HAS RAISED SIMIL AR GROUNDS BEFORE US, WHICH WERE RAISED AT THE TIME OF INITIAL APPEAL BEFORE THE COORDINATE BENCH. WE FIND FROM THE RECORD THAT ASSE SSEE HAS NOT UTILIZED THE OPPORTUNITY EXTENDED TO IT AND ANOTHER OPPORTUNITY CANNOT BE EXTENDED TO THE ASSESSEE AS THE ASSESSEE TOOK THE APPEAL PROCEEDINGS IN A VERY LIGHT MANNER BY NOT COMPLYING WITH THE OPPORTUNITIES PROVIDED BY THE REVENUE AUTHORITIES. ACCORDINGLY, WE DISMISS BOTH THE APPEALS OF THE ASSESSEE. 7. IN THE RESULT, APPEALS OF THE ASSESSEE ARE DISMI SSED. PRONOUNCED IN THE OPEN COURT ON 24 TH MARCH, 2017. (P. MADHAVI DEVI) (S. RIFAUR RA HMAN) JUDICIAL MEMBER AC COUNTANT MEMBER HYDERABAD, DATED:24 TH MARCH, 2017. KV 5 ITA NOS. 191 & 192/H/16 GENNEX LABORATORIES LTD. COPY TO:- 1) M/S GENNEX LABORATORIES LTD., AKASH GANGA, 4 TH FLOOR, PLOT NO. 144 , SRI NAGAR COLONY, HYDERABAD. 2) ACIT, CIRCLE 2(3), HYD. 3) CIT(A) - 2, HYDERABAD 4 PR. CIT - 2, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDE RABAD. 6) GUARD FILE