Hyagreeva Hotels & Resorts Pvt. Ltd, Bengaluru V. Assistant Commissioner of Income Tax, Circle-3(1)(2), Bengaluru

ITA 2896/BANG/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7095 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 28-12-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; TDS; Set aside
• Section: 148

Judgement Text

ITA NO.2896(B)/2017 1 IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES : B, BANGALORE BEFORE SHRI B.R.BASKARAN, ACCOUNTANT MEMBER AND SMT BEENA PILLAI, JUDICAL MEMBER ITA NO. 2 8 96 (BANG)/201 7 (ASSESSMENT YEAR : 201 0 - 11 ) M/S HYAGREEVA HOTELS & RESORTS PVT.LTD., NO.10/6, LAVELLE ROAD, BANGALORE - 560 0 01 PAN NO.A A A CH7551A APPELLANT THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE - 3 (1)( 2 ), BANGALORE RESPONDENT APPELLANT BY : SHRI DEEPESH WAGLE, C A REVENUE BY : SRI R.N.SIDDA P PAJI, ADDL.CIT DATE OF HEARING : 09 - 07 -- 2019 DATE OF PRONOUNCEMENT : O R D E R PER SMT BEENA PILLAI, JUDICIAL MEMBER PRESENT APPEAL HAS BEEN FILED BY ASSESSEE AGAINST ORDER DATED 22/11/2017 PASSED BY LD.CIT(A) - 3, BENGALURU FOR ASSESSMENT YEAR 2010 - 1 1 ON FOLLOWING GROUNDS OF APPEAL: ITA NO.2896(B)/2017 2 1. THE ORDER OF THE LEARNED ASSESSING OFFICER IN SO FAR AS IT IS AGAINST THE APPELLANT, IS OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE ASSESSING OFFICER IS NOT JUSTIFIED IN 'OPENING THE FILE OF THE ASSESSEE U/S 148 BEYOND A PERIOD OF FOUR YEARS WHERE AN ASSESSMENT UNDER SUB - SECTION (3) OF SECTION 143 HAS BEEN MADE FOR THE RELEVANT ASSESSMENT YEAR. 3. THE LEARNED ASSESSING OFFICER IS NOT JUSTIFIED IN MAKING A DISALLOWANCE OF RS 1,08,30,193/ - U/S 36(1)(III) OF THE INCOME TAX ACT, 1961 UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 4. THE ASSESSING OFFICER HAS NOT CONSIDERED THE VALID EXP LANATION AND CASE LAWS GIVEN BY YOUR APPELLANT IN THIS REGARD. IT IS RESPECTFULLY SUBMITTED THAT WE MAY BE PERMITTED TO ADD, DELETE AND / OR PUT FORWARD ANY OTHER GROUNDS AND FACT OF APPEAL AND OTHER RELATED POINTS AT THE TIME OF HEARING. 3. IT HAS BEEN SUBMITTED THAT ASSESSEE NEITHER APPEARED NOR FILED ANY DETAILS/SUBMISSIONS BEFORE LD.CIT (A) DESPITE NOTICES BEING ISSUED. 3.1 LD. CIT (A) THEREFORE DECIDED THE ISSUE BASED UPON THE OBSERVATIONS OF LD. AO. 4. ASSESSEE IS NOW SUBMITTING BEFORE US THAT AND OPPORTUNITY MAY BE GRANTED TO REPRESENT ITS CASE BEFORE LD.CIT (A). 4.1 LD.SR.DR OBJECTED TO THE SAME AND SUBMITTED THAT DESPITE SUFFICIENT OPPORTUNITY, ASSESSEE HAS FAILED TO APPEAR BEFORE LD. CIT (A) TO DEFEND THE AD DITIONS MADE BY LD.AO. IT HAS BEEN SUBMITTED THAT ASSESSEE DO NOT DESERVES AN OPPORTUNITY OF BEING HEARD FOR THE 2 ND TIME UNDER SUCH CIRCUMSTANCES. ITA NO.2896(B)/2017 3 5. WE HAVE PERUSED SUBMISSIONS ADVANCED BY BOTH SIDES IN THE LIGHT OF THE RECORDS PLACED BEFORE US. 5.1 LD. AR ADMITTED TO THE FACT THAT ASSESSEE FAILED TO APPEAR BEFORE LD. CIT (A) TO REPRESENT ITS CASE. HOWEVER THE RIGHT OF BEING HEARD CANNOT BE DENIED TO ASSESSEE. WE ARE THEREFORE OF CONSIDERED OPINION TO SET ASIDE THE ISSUE BACK TO LD. CIT (A) SUBJECT TO COS T OF RS. 5000/ - PAYABLE BY ASSESSEE. ASSESSEE IS DIRECTED TO PAY THE COST TO KARNATAKA CHIEF MINISTERS RELIEF FUND . U PON FILING THE PROOF OF COST HAVING DEPOSIT ED IN ALONG WITH AFFIDAVIT , THE LD. CIT (A) IS DIRECTED TO ISSUE NOTICE OF HEARING TO ASSESSEE. ASSESSEE SHALL THEN FILE ALL REQUISITE DETAILS IN SUPPORT OF ITS CLAIM WHICH SHALL BE VERIFIED BY LD. CIT (A) IN ACCORDANCE WITH LAW AND DECIDE THE ISSUE ON MERITS BY PASSING THE SPEAKING ORDER. WITH THE AFORESTATED DIRECTION, WE SET ASIDE APPEAL BACK T O LD. CIT(A). ACCORDINGLY GROUND RAISED BY ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT APPEAL FILED BY ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24 - 07 - 2019. SD/ - SD/ - (B.R.BASKARAN) (BEENA PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 24 - 07 - 2019 *AM ITA NO.2896(B)/2017 4 COPY OF THE ORDER FORWARDED TO: 1.APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT(A); 5. DR 6. ITO (TDS) 7.GUARD FILE BY ORDER ASST. REGISTRAR ITA NO.2896(B)/2017 5