M/s. Apigee Technologies India Private Limited, Bangalore V. Deputy Commissioner Of Income Tax, Circle- 1(1)(1), Bangalore

ITA 351/BANG/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8587 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 12-08-2021
• Assessment Year: 2008-2009
• Appeal Filed On: 13-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRIDARSHI MISHRA
• Assessee Lawyers: T SURYANARAYAN
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice; Set aside
• Section: 13; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES B, BANGALORE BEFORE SHRI GEORGE GEORGE K, JM & SHRI B.R.BASKARAN, AM ITA NO.351/BANG/2020: ASST.YEAR 2008-2009 M/S.APIGEE TECHNOLOGIES (INDIA) PRIVATE LIMITED C/O.GOOGLE INDIA PRIVATE LIMITED LEVEL 4, TOWER E, RMZ INFINITY OLD MADRAS ROAD BANGALORE 560 016. PAN : AAICS9117R. V. THE DY.COMMISSIONER OF INCOME-TAX, CIRCLE 1(1)(1) BANGALORE. (APPELLANT) (RESPONDENT) APPELLANT BY : SRI.T.SURYANARAYAN, ADVOCATE RESPONDENT BY : SRI.PRIDARSHI MISHRA, ADDL.CIT-DR DATE OF HEARING : 12.08.2021 DATE OF PRONOUNCEMENT : 13.08.2021 O R D E R PER GEORGE GEORGE K, JM THIS APPEAL AT THE INSTANCE OF THE ASSESSEE IS DIRECTED AGAINST THE CIT(A)S ORDER DATED 22.11.2018. THE RELEVANT ASSESSMENT YEAR IS 2008-2009. 2. THERE IS A DELAY OF 417 DAYS IN FILING THIS APPEAL BEFORE THE TRIBUNAL. THE ASSESSEE HAS FILED A PETITION FOR CONDONATION OF DELAY. THE REASONS STATED FOR BELATED FILING OF APPEAL IS THAT THE ASSESSEE HAD CHANGED THE ADDRESS AND IT WAS DULY INTIMATED TO THE CIT(A). HOWEVER, THE CIT(A) WITHOUT NOTING THE NEW ADDRESS OF THE ASSESSEE, ISSUED HEARING NOTICE IN THE OLD ADDRESS OF THE ASSESSEE. SINCE THE ASSESSEE HAD NOT APPEARED BEFORE THE CIT(A), THE APPEAL WAS DISMISSED EX PARTE. THE ASSESSEE CAME TO KNOW OF THE APPEAL BEING DISMISSED, ONLY WHEN IT RECEIVED AN INTIMATION DATED ITA NO.351/BANG/2020. M/S.APIGEE TECHNOLOGIES (INDIA) PVT.LTD. 2 30.01.2019 REGARDING OUTSTANDING TAX ARREARS DEMAND FOR THE ASSESSMENT YEAR 2008-2009. THEREAFTER, IMMEDIATELY THE ASSESSEE FILED A PETITION BEFORE THE CIT(A) TO RECALL HIS ORDER DATED 22.10.2018. IT WAS STATED IN THE CONDONATION PETITION THAT DESPITE REPEATED REQUESTS THE APPLICATION FILED BY THE ASSESSEE-COMPANY REQUESTING FOR RECALL OF THE EX PARTE ORDER OF THE CIT(A) HAS NOT BEEN DISPOSED OF TILL DATE. ACCORDINGLY, THE APPEAL BEFORE THE TRIBUNAL WAS FILED BELATEDLY. 3. AFTER HEARING BOTH PARTIES AND PERUSING THE REASONS STATED FOR FILING THE APPEAL BELATEDLY, WE ARE OF THE VIEW THAT NO LATCHES CAN BE ATTRIBUTED TO THE ASSESSEE. THE ASSESSEE HAD FILED A PETITION FOR RECALLING THE CIT(A)S ORDER DATED 22.10.2018, IMMEDIATELY WHEN ASSESSEE BECAME AWARE OF THE SAME. HENCE, THERE IS SUFFICIENT CAUSE FOR FILING THIS APPEAL LATE. HENCE, WE CONDONE THE DELAY OF 417 DAYS AND PROCEED TO DISPOSE OF THE APPEAL ON MERITS. 4. THE GROUNDS RAISED READ AS FOLLOW :- 1. THAT THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) ['CIT(A)'] DISMISSING THE APPEAL BEFORE IT AND THEREBY CONFIRMING THE ORDER OF THE ASSESSING OFFICER ('AO') IS BAD IN LAW AND IS LIABLE TO BE SET ASIDE. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN PASSING THE IMPUGNED ORDER EX-PARTE. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LEARNED CIT(A) IS BAD IN LAW AND IS LIABLE TO BE QUASHED BEING IN CLEAR VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE RESULTING IN A COMPLETE MISCARRIAGE OF JUSTICE, AS THE ADDITION AND ITA NO.351/BANG/2020. M/S.APIGEE TECHNOLOGIES (INDIA) PVT.LTD. 3 DISALLOWANCE MADE BY THE AO IN HIS ORDER HAVE BEEN CONFIRMED WITHOUT GIVING THE APPELLANT AN APPROPRIATE OPPORTUNITY OF BEING HEARD. 4.A. THAT DESPITE THE APPELLANT INTIMATING THE LEARNED CIT(A) OF A CHANGE IN ITS ADDRESS, THE LEARNED CIT(A) HAS GROSSLY ERRED IN ISSUING THE NOTICE FIXING THE DATE OF HEARING AT THE INCORRECT ADDRESS OF THE APPELLANT. 4.B. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN PASSING THE IMPUGNED ORDER EX-PARTE STATING THAT THE APPELLANT IS NOT SERIOUSLY INTERESTED IN PURSUING ITS APPEAL. 5.A. THAT THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT THE ADDITION/DISALLOWANCE MADE BY THE AO DO NOT AMOUNT TO MISTAKES APPARENT ON RECORD AND THEREFORE THE AO GROSSLY ERRED IN INVOKING THE JURISDICTION UNDER SECTION 154 OF THE ACT TO MAKE THE ADJUSTMENTS. 5.B. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THAT THE AO ERRED IN DENYING THE BENEFIT OF DEDUCTION AMOUNTING TO INR 17,758,495 UNDER SECTION 10A OF THE INCOME-TAX ACT 1961 ('THE ACT') TO THE APPELLANT ON AN INCORRECT PREMISE THAT THE RETURN OF INCOME HAS BEEN FILED BY THE APPELLANT BELATEDLY, WHEN IN FACT, THE RETURN OF INCOME WAS FILED BY THE APPELLANT ON 30 SEPTEMBER 2008, WHICH WAS WELL WITHIN THE DUE DATE FOR FILING THE RETURN OF INCOME. 5.C. THAT WITHOUT PREJUDICE. THE AO ERRED IN DISALLOWING A HIGHER AMOUNT THAN WHAT WAS CLAIMED IN THE RETURN OF INCOME. 6.A. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN UPHOLDING THE ACTION OF THE AO IN NOT ALLOWING THE APPELLANT THE CLAIM OF DEPRECIATION AMOUNTING TO INR 3,648,631 AS A DEDUCTION. 6.B. THAT THE LEARNED CIT(A) HAS ERRED IN THAT THE CLAIM OF DEPRECIATION HAS BEEN DENIED TO THE ITA NO.351/BANG/2020. M/S.APIGEE TECHNOLOGIES (INDIA) PVT.LTD. 4 APPELLANT BY THE AO AND CONFIRMED BY THE LEARNED CIT(A) DESPITE THE FACT THAT THE APPELLANT HAS ADDED BACK THE DEPRECIATION COMPUTED AS PER THE PROVISIONS OF THE COMPANIES ACT AMOUNTING TO INR 11,874,498 AND HAS RIGHTLY CLAIMED THE DEDUCTION OF DEPRECIATION AS PER THE PROVISIONS OF THE ACT AMOUNTING TO INR 8,225,867. 7. CONFIRMING THE LEVY OF INTEREST UNDER SECTION 234B/234C OF THE ACT. 8. THAT THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE LEVY OF INTEREST UNDER SECTION 234C OF THE ACT IN COMPLETE DISREGARD OF THE FACT THAT SUCH INTEREST IS COMPUTED ON RETURNED INCOME. 9. THAT THE ABOVE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. THE APPELLANT CRAVES A LEAVE TO ADD, ALTER, DELETE OR MODIFY ALL OR ANY OF THE GROUNDS OF APPEAL. 5. THE ASSESSEES APPEAL BEFORE THE CIT(A) WAS DISMISSED EX PARTE . IT IS THE CLAIM OF THE ASSESSEE THAT THE NOTICE FOR HEARING OF THE APPEAL BEFORE THE CIT(A) WAS NOT RECEIVED BY THE ASSESSEE, SINCE THE HEARING NOTICES WERE ISSUED TO THE OLD ADDRESS OF THE ASSESSEE AND HENCE THERE WAS SUFFICIENT CAUSE FOR NON-APPEARANCE BEFORE THE CIT(A) DURING THE COURSE OF HEARING. THE ASSESSEE HAD PRODUCED LETTER OF INTIMATION OF CHANGE OF ADDRESS BEFORE THE CIT(A) AND THE SAME IS PLACED ON RECORD. WHEN THE ASSESSEE HAD INTIMATED THE CHANGE OF ADDRESS AND THE CIT(A) HAS BY MISTAKE ISSUED THE HEARING NOTICE TO THE OLD ADDRESS, THERE IS SUFFICIENT CAUSE FOR NON- APPEARANCE OF ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE CIT(A). IN THE INTEREST OF JUSTICE AND EQUITY, THE ISSUES RAISED BEFORE THE CIT(A) NEED TO BE PROPERLY ITA NO.351/BANG/2020. M/S.APIGEE TECHNOLOGIES (INDIA) PVT.LTD. 5 REPRESENTED BY THE ASSESSEE. ACCORDINGLY, THE ISSUES RAISED IN THIS APPEAL ARE RESTORED TO THE FILES OF THE CIT(A). THE CIT(A) IS DIRECTED TO ISSUE FRESH HEARING NOTICES IN THE CORRECT ADDRESS AND AFFORD A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. IT IS ORDERED ACCORDINGLY. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 13 TH DAY OF AUGUST, 2021 . SD/- SD/- ( B.R.BASKARAN ) ( GEORGE GEORGE K ) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE; DATED : 13 TH AUGUST, 2021. DEVADAS G* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(A)-1, BENGALURU 4. THE PR.CIT-1, BENGALURU. 5. THE DR, ITAT, BENGALURU. 6. GUARD FILE. ASST.REGISTRAR/ITAT, BANGALORE