Prestige Constructions , Hyderabad V. Deputy Commissioner of Income Tax ,Central Circle-3(3), Hyderabad

ITA 361/Hyd/2021

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 6615 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Assessment Year: 2013-2014
• Appeal Filed On: 08-09-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y.V.S.T. SAI
• Keywords: TDS
• Section: 43CA; 40A(3); 143(3); 153A; 40(a)(ia)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES “B”: HYDERABAD (THROUGH VIRTUAL CONFERENCE) B EFORE SH RI SA TBEER SING H GODA RA, JU DI CIA L MEM BER AND SHR I L AXMI PR AS A D SAHU , AC COUNT ANT MEMBE R ITA No. 361/H/2021 Assessment Years: 2013-14 Prestige Constructions, Hyderabad PAN – AAIFP 0221 A Vs. Dy. Commissioner of Income-tax, Central Circle – 3(3), Hyderabad. (Appellant) (Respondent) Assessee by: Shri K.A. Sai Prasad Revenue by: Shri Y.V.S.T. Sai Date of hearing: 08/12/2021 Date of pronouncement: 10/12/2021 O R D E R PER L.P. SAHU, A.M.: This appeal filed by the assessee is directed against CIT(A) - 11 Hyderabad’s order dated 05/03/2021 for AY 2013-14 involving proceedings u/s 143(3) r.w.s. 153A of the Income Tax Act, 1961 ; in short “the Act”. 2. We notice at the outset that assessee’s instant appeal suffers from 128 days delay in filing before the ITAT. Considering the submissions of the ld. AR that the assessee ITA No. 361/Hyd/2021 Prestige Constructions, Hyd. . :- 2 -: was prevented by reasonable cause for not filing these appeals within the stipulated time, we rely on Case law Collector Land Acquisition Vs. Mst. Katiji & Ors, 1987 AIR 1353 (SC) and University of Delhi Vs. Union of India, Civil Appeal No. 9488 & 9489/2019 dated 17 December, 2019, hold that such a delay; supported by cogent reasons, deserves to be condoned so as to make way for the cause of substantial justice. We accordingly hold that assessee’s impugned delay in filing this appeal is neither intentional nor deliberate but due to the circumstances beyond its control. The same stands condoned. Case is now taken up for adjudication on merits. 3. Briefly the facts of the case are that the appellant firm filed its original return of income for AY 2013-14 on 29.08.2013 declaring total income of Rs.5,15,220/-. Subsequently, Search and seizure operations u/s132 were conducted on M/s Raghuram & Trishala group on 21.11.2017 and warrant in the case of the appellant M/s Prestige Constructions was executed. The case was centralized and a notice uls 153A was issued on 03.10.2018 and in response, the appellant furnished its return of income on 30.10.2018 declaring total income of Rs.9,91,670/-. The assessment was completed by making an addition of Rs.2,59,18,196/- towards Capital Gains, by making a disallowance u/s 40(a)(ia) amounting to Rs.3,77,500/- being expenses claimed without deduction of ITA No. 361/Hyd/2021 Prestige Constructions, Hyd. . :- 3 -: TDS and disallowance u/s 40A(3) being cash payments of Rs. 1,58,600/- and thereby assessing the total income at Rs.2,74,45,966/-. 4. Aggrieved by the order of AO, the assessee preferred an appeal before the CIT(A) raising the following grounds of appeal: “1. The order of the Deputy Commissioner of Income Tax, Central Circle – 3(3), Hyderabad u/s. 143(3) r.w.s., 153A dt. 28.12.2019 is wrong in law and contrary to the/acts and circumstances of the case. 2. Your appellant submits to your honour that the Assessing officer while completing the assessment made an addition of Rs. 2,59,18,196/- towards capital gains which is unwarranted and the same may be deleted. 3. Your appellant submits to your honour that as the firm is held this asset as business asset and not for investment and based on that no capital gains will be attracted which was introduced from the asst.year 2014-15 u/s. 43CA and no addition is to be made. 4. Your appellant submits to your honour that the Assessing Officer while completing the assessment made an addition of Rs. 3.77,500, - towards disallowance of expenditure u/s 40(a)(ia) being the amounts paid without deduction of tax which is unwarranted and the same may be deleted. 5. Your appellant submits to your honour that all the persons to whom the amounts were paid by way of account payee cheques and they also submitted their returns of income in regular course and without considering this fact this addition was made which is unwarranted and the same may be deleted. ITA No. 361/Hyd/2021 Prestige Constructions, Hyd. . :- 4 -: 6. Any other ground or grounds that shall be urged at the time of appeal hearing." 5. During the course of appellate proceedings, the AR of the assessee filed written submissions, which were extracted by the CIT(A) at pages 7 to 10 of his order. 6. After considering the submissions of the assessee, ld. CIT(A) partly allowed the appeal of the assessee, but, he did not adjudicate legal ground raised by the assessee as Ground No. 1 before him. 7. Against the order of the CIT(A), the assessee is in appeal before the ITAT. 8. Before us, the ld. AR of the assessee submitted that the CIT(A) has passed the order ex-parte and one was present for the appellant before the CIT(A). He, therefore, requested that the matter may be remitted to CIT(A).. 9. The ld. DR, on the other hand, besides relying on the orders of revenue authorities submitted that the CIT(A) has passed the order based on the written submissions filed by the assessee and has discussed all the relevant facts which were necessary for adjudicating the grounds raised by the assessee. ITA No. 361/Hyd/2021 Prestige Constructions, Hyd. . :- 5 -: 10. After hearing both the parties and perusing the material on record as well as the orders of revenue authorities, it is observed that before the CIT(A) the assessee has raised 6 grounds of appeal, out of which ground No. 1 is a legal ground. On perusal of the order of CIT(A), we find that the CIT(A) has not been disposed off the legal ground raised as Ground No. 1 before him and has decided other grounds on merits based on the written submissions. We are, therefore, of the view that in the interest of justice, we remit the matter back to the file of the CIT(A) with a direction to decide the legal ground raised before him after providing opportunity of being heard to the assessee in the matter. We direct the assessee to appear before CIT(A) with all the relevant evidences; at its own risk and responsibility to be followed by three effective opportunities of hearing. 11. In the result, appeal of the assessee is treated as allowed for statistical purposes in above terms. Pronounced in the open court on 10 th December, 2021. Sd/- Sd/- (S.S. GODARA) (L. P. SAHU) JUDICIAL MEMBER ACCOUNTANT MEMBER Hyderabad, Dated: 10 th December, 2021. kv ITA No. 361/Hyd/2021 Prestige Constructions, Hyd. . :- 6 -: Copy to : 1 Prestige Constructions, C/o Katrapathi & Associates, 1-1-298/2/B/3, 1 st Floor, Ashok Nagar, Hyderabad – 500 020 2 DCIT, Central Circle - 3(3), 6 th Floor, Aayakar Bhavan, Basheerbagh, Hyderabad – 500 004 3 CIT(A) – 11, Hyderabad 4 PR. CIT (Central), Hyderabad 5 ITAT, DR, Hyderabad. 6 Guard File.