YES & YES HITECH PREMIER HOMES INDIA PVT LTD, ERODE V. ITO, WARD-1(3), ERODE

ITA 3205/CHNY/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8197 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 26-11-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUBHASHRI
• Assessee Lawyers: S SRIDHAR
• Keywords: Principle of natural justice
• Section: 148; 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: CHENNAI . . . , ! ' # , $ #% BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ./ ITA NO.3205/CHNY/2018 & '& /ASSESSMENT YEAR: 2011-12 M/S. YES & YES HITECH PREMIER HOMES INDIA PVT. LTD., 14A, SATHY ROAD, ERODE 638 004. VS. INCOME TAX OFFICER, WARD-1(3), ERODE. [PAN: AAACY 4148E] ( () /APPELLANT) ( *+() /RESPONDENT) () , - / APPELLANT BY : SHRI S.SRIDHAR, ADVOCATE *+() , - /RESPONDENT BY : MS. SUBHASHRI, JCIT . , /$ /DATE OF HEARING : 04.03.2019 01' , /$ / DATE OF PRONOUNCEMENT : 27.03.2019 / O R D E R PER INTURI RAMA RAO, ACCOUNTANT MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE-COMPANY DI RECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-3, COIMBATORE (HEREINAFTER CALLED AS CIT(A)) DATED 1 0.10.2018 FOR THE ASSESSMENT YEAR (AY) 2011-12. 2. THE APPELLANT RAISED THE FOLLOWING GROUNDS OF AP PEAL: 1) THE ORDER OF THE LEARNED CIT (A) IS ERRONEOUS A ND BAD IN LAW AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. ITA NO.3205/CHNY/2018 (AY: 2011-12) :- 2 -: 2) THE LEARNED CIT (A) ERRED IN NOT CONSIDERING THE GROUNDS OF APPEAL AND THE WRITTEN SUBMISSIONS IN PROPER PERSPECTIVE. 3) TREATMENT OF RETURN OF INCOME FILED ON 26/02/201 4 THE LEARNED CIT (A) ERRED IN NOT UNDERSTANDING/ACC EPTING THE SETTLED PRINCIPLE OF REQUESTING THE REVENUE TO TREAT THE RE TURN OF INCOME FILED EARLIER AS COMPLIANCE TO NOTICE U/S.148, AS HAD HAP PENED IN THE CASE OF THE APPELLANT. 4) THE LEARNED CIT A) ERRED IN NOT CONSIDERING THE FACT THAT THE ASSESSING OFFICERS SUPPLY OF REASONS RECORDED, AFT ER FOLLOWING DECISION OF THE SUPREME COURT IN GKN DRIVESHAFT P RESUPPOSES THAT THE APPELLANT BAD FILED THE RETURN OF INCOME IN RES PONSE TO NOTICE U/S. 148, SINCE THE REQUEST OF THE APPELLANT TO TREAT TH E RETURN OF INCOME FILED ON 26/02/2014, THOUGH BELATED, AS COMPLIANCE TO NOTICE U/S.148, AMOUNTS TO FURNISHING OF RETURN OF INCOME. 5) THE LEARNED CIT (A) ERRED IN IGNORING THE VITAL FACT THAT NO NOTICE U/S.143(2) WAS SERVED, DESPITE REQUEST BY THE APPEL LANT TO TREAT THE RETURN FILED ON 26/02/20 14 AS COMPLIANCE TO NOTICE U/S. 148 AND FURTHER ERRED IN HOLDING THAT THERE WAS NO NECESSIT Y TO ISSUE NOTICE U/S. 143(2), AS THE APPELLANT DID NOT FILE RETURN I N RESPONSE TO NOTICE U/S. 148. 6) THE LEARNED CIT A) ERRED IN HOLDING THAT THE APP ELLANT MISUSED THE E-FILING PORTAL BY STATING THAT THE RETURN OF INCOM E FILED ON 26/02/20 14 WAS U/S.148, WHEN NO NOTICE ULS.148 WAS ISSUED BY N OT UNDERSTANDING THE VERY FACT THAT FOR THE IMPUGNED A SSESSMENT YEAR, E-FILING PORTAL DID ALLOW SUCH FILING OF RETURNS; H OWEVER, NOW, THE E- FILING PORTAL INSISTS DATE OF NOTICE U/S. 148. 7) ON MERITS, THE EARNED CIT (A) ERRED IN NOT CONSI DERING THE NECESSITY WHICH MADE THE APPELLANT TO FILE A RETURN OF INCOME ON 26/02/20 14. AND FOR OTHER REASONS THAT MAY BE ADDUCED AT THE TI ME OF HEARING, THE APPELLANT PRAYS THAT THIS APPEAL BE CONSIDERED, ADMITTED AND JUSTICE BE RENDERED. 3. THE BRIEF FACTS OF THE CASE ARE AS UNDER: THE APPELLANT IS A COMPANY INCORPORATED UNDER THE P ROVISIONS OF THE COMPANIES ACT, 1956. THE RETURN OF INCOME FOR THE AY 2011-12 WAS FILED ON 30.07.2011. SUBSEQUENTLY, BASED ON THE IN FORMATION FOUND DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN THE ASSESSMENT YEAR ITA NO.3205/CHNY/2018 (AY: 2011-12) :- 3 -: 2012-13 THAT THE ASSESSEE PAID A SUM OF RS. 4,50,00 0/- IN CASH TO ONE MR. A.K.BALASUBRAMANIAM ON ENTERING INTO JOINT DEVE LOPMENT AGREEMENT DATED 27.12.2010, ISSUED NOTICE U/S. 148 OF THE ACT AS THE AO FOUND THAT THIS PAYMENT WAS NOT RECORDED IN THE BOOKS OF THE A PPELLANT. IN RESPONSE TO NOTICE U/S. 148 OF THE ACT, IT WAS SUBM ITTED THAT THE RETURN FILED ON 26.02.2014 BE TREATED AS RETURN OF INCOME IN RESPONSE TO NOTICE U/S. 148 OF THE ACT, HE ALSO REQUESTED ON FURNISHIN G THE REASONS RECORDED FOR ISSUANCE OF NOTICE U/S. 148 OF THE ACT. THE AO VIDE LETTER DATED 06.05.2016 AS STATED SINCE THERE WAS NO VALID RETUR N OF INCOME IN RESPONSE TO NOTICE U/S 148 OF THE ACT AND PROCEEDED TO MAKE EXPARTE ASSESSMENT U/S. 144 OF THE ACT BY BRINING TO TAX AM OUNT OF RS. 4,50,000/- VIDE ORDER DATED 23.12.2016 PASSED U/S. 144 OF THE ACT. ON APPEAL BEFORE LD. CIT(A), THE LD. CIT(A) HELD THAT THERE W AS NO NEED OF SERVICE OF NOTICE U/S. 143(2) OF THE ACT SINCE, NO VALID RETUR N OF INCOME WAS FILED IN RESPONSE TO NOTICE U/S. 148 OF THE ACT. 4. BEING AGGRIEVED, THE APPELLANT IS IN APPEAL BEFO RE US IN THE PRESENT APPEAL. 5. IT IS STATED THAT THE RETURN OF INCOME THOUGH FI LED BELATEDLY IS VALID IN LAW SINCE, IT WAS ACCEPTED BY THE DEPARTMENT. CONSI DERING THE RIVALS SUBMISSIONS, WE FIND MERIT IN THE SUBMISSIONS OF TH E ASSESSEE THAT THE RETURN OF INCOME FILED ON 26.02.2014 MAY BE TREATED AS RETURN IN ITA NO.3205/CHNY/2018 (AY: 2011-12) :- 4 -: RESPONSE TO NOTICE U/S. 148 OF THE ACT, AO IS DIREC TED TO FRAME THE ASSESSMENT ORDER IN ACCORDANCE WITH LAW AFTER CONSI DERING THE RETURN OF INCOME FILED ON 26.02.2014 AS RETURN OF INCOME IN R ESPONSE TO NOTICE U/S. 148 OF THE ACT. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THE 27 TH DAY OF MARCH, 2019 IN CHENNAI. SD/- SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER ( ! ' # ) (INTURI RAMA RAO) $ /ACCOUNTANT MEMBER /CHENNAI, 2 /DATED: 27 TH MARCH, 2019. EDN, SR. P.S , */34 54'/ /COPY TO: 1. () /APPELLANT 2. *+() /RESPONDENT 3. . 6/ ( )/CIT(A) 4. . 6/ /CIT 5. 47 */ /DR 6. & 8 /GF