VASUDHA SHELTERS, VIJAYAWADA V. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1(1), VIJAYAWADA

ITA 228/VIZ/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 4979 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: DB
• Next Hearing Date: 06-11-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 22-08-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order; Principle of natural justice
• Section: 263; 143(3); 250

Judgement Text

आयकरअपीलीयअधिकरण, धिशाखापटणम पीठ, धिशाखापटणम IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM श्री द ु व्वूरु आर एल रेड्डी, न्याधयक सदस्य एिं श्री एस बालाकृ ष्णन, लेखा सदस्य के समक्ष BEFORE SHRI DUVVURU RL REDDY, HON’BLE JUDICIAL MEMBER & SHRI S BALAKRISHNAN, HON’BLE ACCOUNTANT MEMBER आयकर अपील सं./I.T.A.No.227/Viz/2023 & 228/Viz/2023 (ननधधारण वर्ा / Assessment Year : 2010-11) M/s Vasudha Shelters D.No.27-23-31, Gopala Reddy Street Governorpet Vijayawada [PAN : AAGFV6727K] Vs. Asst. Commissioner of Income Tax Circle-1(1) Vijayawada (अपीलार्थी/ Appellant) (प्रत्यर्थी/ Respondent) अपीलधथी की ओर से/ Appellant by : Shri C.Subrahmanyam, AR प्रत्यधथी की ओर से / Respondent by : Dr.Satyasai Rath, CIT(DR) सुनवधई की तधरीख / Date of Hearing : 07.11.2023 घोर्णध की तधरीख/Date of Pronouncement : 29.11.2023 आदेश /O R D E R Per Shri Duvvuru RL Reddy, Judicial Member : These appeals are filed by the assessee against the orders of Commissioner of Income Tax (Appeals) [CIT(A)], National Faceless Appeal Centre (NFAC), Delhi vide order dated 28.06.2023, arising out of order passed u/s 143(3) r.w.s.263 of the Income Tax Act, 1961 (in short ‘Act’) dated 18.03.2016 and 26.11.2018 the Assessment Year (A.Y.) 2010-11. For the sake of convenience, these appeals are clubbed, heard 2 I.T.A. No.227/Viz/2023 & 228/Viz/2023, A.Y. 2010-11 M/s Vasudha Shelters, Vijayawada together and a common order is being passed for the sake of convenience as under. Facts are extracted from I.T.A.227/Viz/2023. 2. Brief facts of the case are that the assessee, engaged in the business of civil construction, filed it’s return of income for the A.Y.2010-11 admitting total income of Rs.23,79,162/-. Assessment u/s 143(3) of the Act was completed on 28.01.2013, determining the total income at 9% of the gross turnover as net profit and after allowing remuneration to partners, the income was assessed at Rs.45,65,564/-. The assessment order passed by the AO was considered as erroneous in so far as it was prejudicial to the interest of revenue. Hence, case was reopened u/s 263 of the Act by the then jurisdictional CIT and order u/s 143(3) r.w.s. 263 of the Act was passed on 21.03.2018 assessing the total income at Rs.53,11,776/-. Aggrieved, the assessee preferred an appeal before the Tribunal and pleaded the Ld.CIT(A) to adjourn till the disposal of the said appeal by the Tribunal. The Tribunal passed order vide ITA 137/Viz/2015 and 417/Viz/2018 dated 15.06.2022 for the A.Y.2010-11. Hence, the Ld.CIT(A) held that the reply of the assessee is incorrect as the assessee’s appeal before the Tribunal was disposed off and the assessee was allowed for withdrawal of the appeal as pleaded by the assessee, which was not brought to the notice of the Ld.CIT(A). The assessee’s case 3 I.T.A. No.227/Viz/2023 & 228/Viz/2023, A.Y. 2010-11 M/s Vasudha Shelters, Vijayawada was posted for hearing on various occasions before the Ld.CIT(A), but the assessee did not comply with the notices. Hence, the Ld.CIT(A) dismissed the appeal of the assessee holding that the assessee is not interested in pursuing the appeal and not having any documents / explanation and evidence in support of grounds of appeal raised and thus has not discharged the onus to prove the genuineness of transactions / addition made by the AO. 3. Aggrieved by the order of the Ld.CIT(A), the assessee preferred an appeal before the Tribunal by raising the following grounds of appeal : 1. The order passed u/s 143(3) r.w.s. 263 dated 26.11.2018 of the I.T.Act and dismissed by the Ld.Commissioner of Income Tax (Appeals) (in short ‘CIT(A)’) as infructuous, vide order passed u/s 250 of the IT Act dt.28.06.2023 is contrary to the provisions of law and facts of the case. 2. The Ld.CIT(A) is not correct in dismissing this appeal ex-parte ignoring the adjournments sought by the assessee, thus violated the principles of natural justice. 3. The Ld.CIT(A) ought not have dismissed the appeal inlimine since the same is not in accordance with the provisions of Section 250(6) of the Act, which obligates the CIT(A) to dispose of the appeal on merits. 4. The Ld.CIT(A) ought to have held that the income computed with regard to house property is erroneous in as much as the deduction towards interest has been wrongly arrived at. 5. The Ld.CIT(A) ought to have held that estimation of income at 11% on the work orders amounting to Rs.1,25,93,646/- is without any basis and in any case the estimation is on the higher side. 4 I.T.A. No.227/Viz/2023 & 228/Viz/2023, A.Y. 2010-11 M/s Vasudha Shelters, Vijayawada 6. For these and such other submissions that are to be urged at the time of hearing of the appeal the appellant prays that the order of CIT(A) is liable to be quashed in the interest of justice. 4. At the outset, the Ld.AR contended that the Ld.CIT(A) dismissed the appeal of the assessee ex-parte ignoring the adjournments sought by the assessee to make assessee’s case in support of the grounds filed, which is against the principles of natural justice. He further contended that the Ld.CIT(A) is not justified in dismissing the appeal in-limine, which obligates the Ld.CIT(A) to dispose of the appeal on merits. The Ld.AR pleaded to afford one more opportunity of being heard before the Ld.CIT(A) to substantiate it’s case with relevant material evidences. 5. Per contra, the Ld.DR contended that the assessee failed to furnish material evidences or documents or even written submissions before the appellate authorities despite many opportunities were being given to the assessee. He, therefore, pleaded to uphold the order passed by the Ld.CIT(A) and dismiss the appeal of the assessee. 6. We have heard both the parties and perused the material available on record. As is evident, the Ld.CIT(A) dismissed the appeal of the assessee ex-parte as there was no response from the assessee for various notices issued with proper material evidences and the assessee sought adjournments even after the disposal of assessee’s appeal before the 5 I.T.A. No.227/Viz/2023 & 228/Viz/2023, A.Y. 2010-11 M/s Vasudha Shelters, Vijayawada Tribunal. However, keeping in view the principles of natural justice, we are inclined to remit the matter back to the file of the Ld.CIT(A) with a direction to dispose of these appeals on merits by affording one more opportunity of being heard to the assessee to substantiate it’s case with proper evidences. The assessee is also directed to adhere to the notices issued by the revenue authorities with relevant material evidences. Accordingly, all the grounds filed by the assessee are allowed for statistical purpose. 7. In the result, appeals of the assessee are allowed for statistical purpose. Order pronounced in the open court on 29 th November, 2023. Sd/- Sd/- (एस बालाकृ ष्णन) (द ु व्वूरु आर.एल रेड्डी) (S.BALAKRISHNAN) (DUVVURU RL REDDY) लेखा सदस्य/ACCOUNTANT MEMBER न्याधयक सदस्य/JUDICIAL MEMBER Dated : 29.11.2023 L.Rama, SPS 6 I.T.A. No.227/Viz/2023 & 228/Viz/2023, A.Y. 2010-11 M/s Vasudha Shelters, Vijayawada आदेश की प्रतितिति अग्रेतिि/Copy of the order forwarded to:- 1. ननधधाऩरती/ The Assessee– M/s Vasudha Shelters, D.No.27-23-31, Gopala Reddy Street, Governorpet, Vijayawada 2. रधजस्व/The Revenue – The Asst. Commissioner of Income Tax, Circle- 1(1), Vijayawada 3. The Principal Commissioner of Income Tax, Vijayawada 4. नवभधगीय प्रनतनननध, आयकर अपीलीय अनधकरण, नवशधखधपटणम / DR,ITAT, Visakhapatnam 5..गधर्ा फ़धईल / Guard file आदेशधनुसधर / BY ORDER Sr. Private Secretary ITAT, Visakhapatnam