M/s Kitty Steels Limited, Hyderabad V. Dy.CIT, Circle-2(1), Hyderabad

ITA 426/HYD/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74492 (ITAT-HYDERABAD)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 1995-1996
• Appeal Filed On: 01-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P SOMASEKHAR REDDY
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO. 426/HYD/2013 ASSESSMENT YEAR: 1995-96 M/S KITTY STEELS LTD., APPELLANT GHATKESAR, RR DIST. (PAN AABCK5674L) VS. DY. COMMISSIONER OF INCOME-TAX, RES PONDENT CIRCLE 2(1), HYDERABAD. APPELLANT BY : SHRI A. SRINIVAS RESPONDENT BY : SHRI P. SOMASEKHAR REDDY DATE OF HEARING : 20/02/2014 DATE OF PRONOUNCEMENT : 20/02/2014 ORDER PER CHANDRA POOJARI, A.M.: THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A)-III HYDERABAD DATED 08/01/2013 FOR THE ASSESSMENT YEAR 1995-06 WHEREIN THE ASSESSEE HAS RAISED THE FO LLOWING GROUNDS OF APPEAL: 1. THE ORDER OF THE AO IS CONTRARY TO THE LAW, FACT S AND CIRCUMSTANCES OF THE CASE. 2. THE CIT(A) OUGHT NOT TO HAVE DISMISSED THE APPEA L ON HIS OPINION THAT THE APPEAL FILED BEYOND THE STATUTORY LIMIT LAID DOWN U/S 249(2). 3. THE CIT(A) OUGHT TO HAVE SEEN THE DATE ON WHICH THE ASSESSEE WAS SERVED THE ORDER, THAN THE DATE AS DIS PATCHED BY THE DEPARTMENT. 4. NOTWITHSTANDING THE ABOVE THE ORDER OF THE AO IS BARRED BY LIMITATION AND DESERVES TO BE ANNULLED. 2 ITA NO. 426/H/13 M/S KITTY STEELS LTD. 5. THE AO HAS GROSSLY ERRED IN ASSUMING JURISDICTIO N U/S 154. 6. THE AO HAS ERRED IN NOT STATING THE SPECIFIC ORD ER WHICH WAS BEING RECTIFIED. 7. THE AO HAS ERRED IN NOT STATING AND GIVING A FIN ING OF ANY ERROR APPARENT ON RECORD IN HIS ORDER U/S 154 ATED 17/05/2007. 8. THE AO HAS ERRED IN RAISING A DEMAND OF RS. 3,90 ,72,897/-. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE IS A LIMITED COMPANY AND IS IN BUSINESS OF MANUFACTURING OF STEE L FOR THE A.Y- 1995-96 THE ASSESSEE FILED A RETURN OF INCOME ON 30/11/1995. THE ASSESSMENT WAS COMPLETED ON A TOTAL INCOME OF RS.3,73,72,000/-. THE ASSESSEE FILED AN APPEAL BEFORE THE APPELLANT COMMI SSIONER. THE APPELLANT COMMISSIONER VIDE HIS ORDER SUSTAINED AN AMOUNT OF RS. 1 ,52,54,934/-. THE REVENUE FILED AN APPEAL AGAINST THE ORDER OF TH E APPELLANT COMMISSIONER BEFORE THE ITAT. THE ITAT V IDE ITS ORDER DATED 08-10-2004 RESTORED THE MATTER TO THE FILE OF A 0 IN SO FAR IT RELATED TO THE ADMISSION OF FRESH EVIDENCE BY THE A PPELLATE COMMISSIONER. 2.1 BASED ON THE ITAT ORDER, THE AO PASSED AN ORDER U/S.143(3) R.W.S 254 OF INCOME TAX ACT ON 26-12-2006 DETERMINI NG THE TOTAL INCOME AT RS.4,99,69,265/-. THE TAX & SURCHARGE WORKED OUT TO RS.2.27.86.096/-. AFTER GIVING CREDIT FOR TDS & CALCULATING INTEREST U/S.234B THE TAX DEMAND WAS DETERMINED AT 3,87,29,292/-. 2.2 SUBSEQUENTLY A NOTICE U/S.154 WAS ISSUED IN WHI CH IT WAS PROPOSED TO MODIFY THE ABOVE ORDER AS SURCHARGE WAS CALCULATED AT 14% INSTEAD OF 15%. ON 17-05-2007 AN ORDER U/S 154 WAS PASSED RECTIFYING THE SAID MISTAKE. 2.3 THEREAFTER ANOTHER NOTICE WAS ISSUED BY THE AO WHEREIN IT WAS PROPOSED TO MODIFY THE ORDER PASSED U/S.154 ON 17-0 5-2007. AN ORDER U/S.154 WAS PASSED MODIFYING THE ORDER PASSED ON 17 -05-2007 ON 11- 11-2011. IN THIS SAID MODIFICATION ORDER THE DEMAND WAS DETERMINED AT RS.3,90,72,897/-. 3 ITA NO. 426/H/13 M/S KITTY STEELS LTD. 2.4 AGGRIEVED BY THE ORDER PASSED ON 11-11-2011 AS BEING BARRED BY LIMITATION, THE ASSESSEE FILED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX APPEALS-V, HYDERABAD. 2.5 THE COMMISSIONER OF INCOME TAX APPEALS-V, HYDER ABAD VIDE HIS ORDER DATED 08-01-2013 DISMISSED THE APPEAL OF THE ASSESSEE. THE APPEAL WAS DISMISSED ON THE GROUND THAT THE SAI D APPEAL WAS NOT FILED WITHIN THE PRESCRIBED TIME AS PER SECTION 249 (2). WHILE DOING SO THE APPELLATE COMMISSIONER RELIED ON THE RECORDS OF THE DEPARTMENT, WITHOUT TAKING INTO THE CONSIDERATION THE ACTUAL DA TE OF SERVICE ON THE ASSESSEE. 3. BEFORE US, THE LEARNED AR OF THE ASSESSEE SUBMIT TED THAT THERE WAS NO DELAY IN FILING THE APPEAL BEFORE THE CIT(A) . HE CONTENDED THAT THE CIT(A) HAD PASSED EX-PARTE ORDER WITHOUT GOING INTO THE DETAILS OF RECORD AND CAME TO A CONCLUSION THAT THE ASSESSMENT ORDER WAS SERVED TO THE ASSESSEE WITHIN THE STIPULATED TIME A S PER THE RELEVANT ORDER SHEET ENTRY AS WELL AS THE ENTRY OF DISPATCH, THE DETAILS OF WHICH WERE REPRODUCED BY THE CIT(A) AT PAGE 7 OF IMPUGNED ORDER. ACCORDING TO THE ASSESSEE, THE ACTUAL DATE OF RECEI PT OF THE ASSESSMENT ORDER BY THE ASSESSEE TO BE TAKEN INTO C ONSIDERATION FOR THE STATUTORY TIME AVAILABLE TO THE ASSESSEE FOR FI LING THE APPEAL BEFORE THE CIT(A). 4. ON THE OTHER HAND, THE LEARNED DR SUBMITTED THAT THE ASSESSEE FALSIFIED THE INFORMATION OF RECEIPT OF ORDER TO CO NCEAL THE FACT OF LATE FILING AND MENTIONED A WRONG DATE OF RECEIPT OF ASS ESSMENT ORDER IN FORM NO. 35. BEING SO, THE ASSESSEES CASE SHALL NO T BE CONDONED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE RECORD AS WELL AS GONE THROUGH THE ORDERS OF THE AU THORITIES BELOW. IN OUR CONSIDERED VIEW, TO MEET THE ENDS OF JUSTICE, I T IS APPROPRIATE TO REMIT THE ISSUE TO THE FILE OF THE CIT(A) WITH A DI RECTION TO VERIFY THE DATE OF RECEIPT ASSESSMENT ORDER BY THE ASSESSEE AN D THEREAFTER 4 ITA NO. 426/H/13 M/S KITTY STEELS LTD. DETERMINE WHETHER THE ASSESSEE HAS FILED THE APPEAL BEFORE HIM WITHIN THE SPECIFIED DATE OR NOT. WE ORDER ACCORDIN GLY. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 20/02/2014. SD/- SD/- (SAKTIJIT DEY) (CHANDRA POOJARI ) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED: 20/02/2014. KV COPY TO:- 1) M/S KITTY STEELS LTD., NO. 126, YAMNAMPETA INDUS TRIAL AREA, POGULAGUDA VILLAGE, GHATKESAR, RR DT. - 50130 1 2) DCIT, CENTRAL CIRCLE 2(1), AAYAKAR BHAVAN, HYD . 3) CIT(A)-III, HYDERABAD 4) CIT-II, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T. A.T., HYDERABAD.