Country Club India Ltd., Hyd, Hyderabad V. ACIT, Circle-14(1), Hyderabad, Hyderabad

ITA 23/HYD/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6069 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 20-02-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 08-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: U MINICHANDRAN
• Assessee Lawyers: P MURALI MOHANA RAO
• Keywords: Opportunity of being heard
• Section: 143(3); 133A; 201(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER ITA NO. 23/HYD/2016 ASSESSMENT YEAR: 2012-13 COUNTRY CLUB INDIA LTD., HYDERABAD. PAN AAACC 8276 B VS. ASST. COMMISSIONER OF INCOME-TAX, CIRCLE 14(1), HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI P. MURALI MOHANA RAO REVENUE BY : SMT. U. MINI CHANDRAN DATE OF HEARING : 20-02-2017 DATE OF PRONOUNCEMENT : 10-03-2017 O R D E R PER S. RIFAUR RAHMAN, A.M.: THIS IS AN APPEAL OF THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX(A) - 8, HYDE RABAD, DATED 26 TH OCTOBER, 2015 FOR AY 2012-13. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT A SSESSEE IS A COMPANY ENGAGED IN THE BUSINESS OF RUNNING CLUBS AND HOTELS . IN THIS CASE, A SURVEY U/S 133A OF THE IT ACT, 1961 WAS CONDUCTED O N 08/01/2013. ORDER U/S 201(1) AND 201(1A) OF THE ACT WAS PASSED ON 31/03/2014 RAISING A DEMAND OF RS. 1,09,09,830/- TOWARDS NON-D EDUCTION OF TAX ON ADVERTISEMENT, OTHER MARKETING & ADMINISTRATIVE EXPENSES, REPAIRS AND MAINTENANCE TO OTHER ASSETS, RENT INCLUDING LEA SE RENT, LEGAL & PROFESSIONAL CHARGES, PAYMENTS TO NBFC & COMMISSION . 2 ITA NO. 23/H/16 COUNTRY CLUB INDIA LTD., 3. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFO RE THE CIT(A). 4. AS THERE WAS NO COMPLIANCE FROM THE ASSESSEE AGA INST VARIOUS NOTICES OF HEARING ISSUED, THE CIT(A), INTER-ALIA, FOLLOWING THE DECISION IN THE CASE OF CIT VS. MULTIPLAN INDIA (P) LTD., 38 ITD 320 (DEL.) DISMISSED THE APPEAL OF THE ASSESSEE IN-LIMINE. 5. AGGRIEVED BY THE ORDER OF THE CIT(A), THE ASSESS EE IS IN APPEAL BEFORE US RAISING THE FOLLOWING GROUNDS OF APPEAL: 1. THE ORDER OF THE LD. CIT (A)-8, HYDERABAD IS ER RONEOUS BOTH ON FACTS AND IN LAW. 2. THE LD. CIT (A), ERRED IN NOT ADJUDICATING ON TH E GROUNDS TAKEN BY THE APPELLANT WHICH ARE BASED ON MERITS OF THE CASE. 3. THE LD. CIT(A) OUGHT TO HAVE GIVEN REASONABLE OP PORTUNITY OF BEING HEARD TO THE APPELLANT AND DECIDED THE APPEAL ON MERITS. 4. THE LEARNED CIT (A), OUGHT TO HAVE APPRECIATED T HAT NO DISALLOWANCE U/S 40(A)(IA) HAS BEEN MADE BY ASSESSI NG OFFICER IN THE SCRUTINY ORDER PASSED U/S 143(3) OF THE ACT FOR THE ASST. YEAR 2012-13. 5.. THE LEARNED CIT (A), OUGHT TO HAVE APPRECIATED THAT THE APPELLANT HAS COMPLIED WITH ALL THE PROVISIONS OF T DS IN RESPECT OF ITS EXPENDITURE. 6. THE LEARNED CIT (A), OUGHT TO HAVE APPRECIATED T HAT THE AMOUNT ON WHICH TDS IS NOT MADE HAS BEEN PAID TO VA RIOUS DIFFERENT PARTIES AND THAT THE AMOUNTS HAVE NOT EXC EEDED THE THRESHOLD LIMITS SPECIFIED IN THE TDS PROVISIONS. 7. THE LEARNED CIT (A), OUGHT TO HAVE APPRECIATED T HAT THE APPELLANT HAS REMITTED THE TDS AMOUNT INTO GOVERNME NT TO THE ACCOUNT UNDER FIVE DIFFERENT TANS RELATING TO HYDER ABAD, CHENNAI, VIZAG, DELHI AND BANGALORE AND THAT THE EX PENSES ARE CONSOLIDATED IN PROFIT AND LOSS ACCOUNT AT ONE PLAC E. 8. WITHOUT PREJUDICE TO THE OTHER GROUNDS, THE LEAR NED CIT (A) OUGHT TO HAVE APPRECIATED THAT WHERE THE DEDUCTEE, HAS ALREADY PAID TAXES ON THE AMOUNT RECEIVED FROM THE DEDUCTOR , THE DEPARTMENT CANNOT RECOVER TAX FROM THE DEDUCTOR ONC E AGAIN ON 3 ITA NO. 23/H/16 COUNTRY CLUB INDIA LTD., THE SAME INCOME BY TREATING THE DEDUCTOR AS THE ASS ESSEE-IN- DEFAULT FOR THE SHORTFALL IN ITS AMOUNT OF TAX DEDU CTED AT SOURCE. 9. THE LEARNED CIT (A) OUGHT TO HAVE APPRECIATED TH E JUDGEMENT OF HONOURABLE SUPREME COURT IN THE CASE OF HINDUSTA N COCA COLA BEVERAGE PVT. LTD. VS. COMMISSIONER OF INCOME TAX [2007] 163 TAXMAN 355 (SC). 10. THE ASSESSEE MAY ADD, ALTER OR MODIFY OR SUBSTI TUTE ANY OTHER POINT TO THE GROUNDS OF APPEAL AT ANY TIME BE FORE OR AT THE TIME OF HEARING OF THE APPEAL. 6. BEFORE US, THE AR OF THE ASSESSEE SUBMITTED A PA PER BOOK WHEREIN THE STATEMENTS SHOWING DETAILS OF TDS DEDUC TED HAVE BEEN PLACED FROM PAGE 1 TO 25 OF THE PAPER BOOK, WHICH W ERE ALSO FILED BEFORE THE AO. THE LD. AR SUBMITTED THAT THE AO OUG HT TO HAVE APPRECIATED THE FACT THAT THE PROVISIONS OF TDS ARE NOT APPLICABLE BECAUSE OF THE FACT THAT THE PAYMENTS WERE MADE TO VARIOUS PARTIES AND THE AGGREGATE OF SAME IS NOT EXCEEDING THE SPEC IFIED LIMITS AS MENTIONED IN THE PROVISIONS. FURTHER, HE SUBMITTED THAT THE EXPENDITURE IN RESPECT OF WHICH THE TDS PROVISIONS ARE ATTRACTED HAVE ALREADY SUFFERED THE TDS AND ACCORDINGLY THE TDS AM OUNT WAS DEPOSITED IN THE ACCOUNTS OF GOVT. FURTHER, HE SUB MITTED THAT THE COMPANY PAYS TDS UNDER FIVE DIFFERENT TANS AND EXPE NDITURE INCURRED UNDER VARIOUS TANS WAS ACCOUNTED FOR UNDER THE SAID TANS IN RESPECT OF TDS. THE LD. AR RELIED ON THE JUDGEME NT OF THE HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BE VERAGES (P) LTD. VS. CIT, 293 ITR 226. HE FURTHER BROUGHT TO OUR NO TICE THAT PROPER OPPORTUNITY WAS NOT GIVEN BY THE LD. CIT(A) BEFORE ADJUDICATING THE MATTER. 7. THE LD. DR ON THE OTHER HAND BESIDES RELYING ON THE ORDER OF THE CIT(A) SUBMITTED THAT THOUGH THE CIT(A) HAD GIV EN NUMBER OF OPPORTUNITIES, THE ASSESSEE FAILED TO APPEAR BEFORE THE CIT(A), WHICH SHOWS THE ASSESSEE IS NOT INTERESTED IN PROSECUTING ITS APPEAL. 4 ITA NO. 23/H/16 COUNTRY CLUB INDIA LTD., 8. CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL FACTS ON RECORD. THE CIT(A) DISMISSED THE APPEAL OF THE A SSESSEE BY PASSING EX-PARTE ORDER. WE HAVE NOTICED AND ALSO BR OUGHT TO OUR NOTICE BY THE LD. COUNSEL THAT LD. CIT(A) HAS GIVEN OPPORTUNITIES ON 07/10/2015, 16/10/2015 AND 26/10/2015 AND DISMISSED THE APPEAL. IN OUR CONSIDERED VIEW, THE LD. CIT(A) HAS NOT EXTENDE D ENOUGH TIME TO THE ASSESSEE AND DISMISSED THE APPEAL WITHIN THE SA ME MONTH. THEREFORE, IN THE INTEREST OF JUSTICE, WE ARE INCL INED TO REMIT THE MATTER BACK TO THE FILE OF THE CIT(A) WITH A DIRECT ION TO EXAMINE THE STATEMENTS SHOWING THE DETAILS OF TDS FILED BY THE ASSESSEE AND DECIDE THE ISSUE ON MERITS AND IN ACCORDANCE WITH L AW AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN TH E MATTER. THE ASSESSEE IS DIRECTED TO COMPLY WITH THE DIRECTIONS OF CIT(A) IN DISPOSING ITS APPEAL. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 10 TH MARCH, 2017. SD/- SD/- (P. MADHAVI DEVI) (S. RIFAUR RA HMAN) JUDICIAL MEMBER AC COUNTANT MEMBER HYDERABAD, DATED: 10 TH MARCH, 2017. KV COPY TO:- 1) M/S COUNTRY CLUB INDIA LTD., C/O SHRI P. MURALI & CO., CAS, 6-3-655/2/3, 1 ST FLOOR, SOMAJIGUDA, HYDERABAD 82. 2) ACIT, CIRCLE 14(1), HYD. 3) CIT(A) - 8, HYDERABAD 4 CIT (TDS), HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDE RABAD. 6) GUARD FILE 5 ITA NO. 23/H/16 COUNTRY CLUB INDIA LTD., S.NO. DESCRIPTION DATE INTLS DS1. DRAFT DICTATED ON SR.P.S./P.S 2. DRAFT PLACED BEFORE AUTHOR SR.P.S/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.P.S./PS SR.P.S./P.S 6. KEPT FOR PRONOUNCEMENT ON SR. P.S./P.S. 7. FILE SENT TO THE BENCH CLERK SR.P.S./P.S 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER