Sandhya Hotels Pvt. Ltd., Hyd, Hyderabad V. DCIT, Circle-3(1), Hyderabad, Hyderabad

ITA 462/HYD/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6026 (ITAT-HYDERABAD)
• Duration Of Justice: 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 27-10-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 31-03-2016
• Court: TRIBUNAL
• Department Lawyers: A SITARAMA RAO
• Assessee Lawyers: P MURALI MOHAN RAO
• Keywords: Assessment record

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A, HYDERABAD BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER I.T.A. NO. 462/HYD/2016 ASSESSMENT YEAR: 2007-08 M/S. SANDHYA HOTELS PVT. LTD., HYDERABAD [PAN: AAJCS1303C] VS THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-6, HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI P. MURALI MOHAN RAO, AR FOR REVENUE : SHRI A. SITARAMA RAO, DR DATE OF HEARING : 27-10-2016 DATE OF PRONOUNCEMENT : 16-11-2016 O R D E R PER B. RAMAKOTAIAH, A.M. : THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF TH E COMMISSIONER OF INCOME TAX (APPEALS)-3, HYDERABAD, DATED 29-12-2015, DISMISSING THE APPEAL BY INVOKING THE PR OVISIONS OF SECTION 249 OF THE INCOME TAX ACT [ACT] STATING THAT THE A PPEAL WAS NOT FILED IN TIME. 2. AGGRIEVED ON THE ASSESSMENT ORDER PASSED BY THE DY. CIT, CENTRAL-6, HYDERABAD, DT. 31-12-2009, ASSESSEE PREFER RED AN APPEAL BEFORE THE CIT(A). AS NOTED BY THE LD.CIT(A), THE APPEAL MEMO OF THE APPELLANT WAS SHOWING THAT ORDER WAS SERVE D ON I.T.A. NO. 462/HYD/2016 M/S. SANDHYA HOTELS PVT. LTD., :- 2 -: 25-02-2010 AND APPEAL MEMO WAS FILED ON 11-03-2010. LD.CIT(A) CALLED FOR THE ASSESSMENT RECORD AND NOTICED THAT DATE O F SERVICE OF ASSESSMENT ORDER AS FOUND IN THE DEPARTMENTAL FILE WAS 31-12- 2009. THE LD.CIT(A) NOTED THAT IT IS NOT UNDERSTOOD AS TO WHY THE APPELLANT RECORDED THE DATE OF SERVICE OF THE ORDER AS 25-02-2010. 3. LD.CIT(A) DISMISSED THE APPEAL INVOKING THE PROVI SIONS OF SECTION 249 BY STATING AS UNDER: SINCE THE ASSESSMENT ORDER WAS SERVED ON 31.12.2009 THE APPEAL SHOULD HAVE BEEN FILED BEFORE JANUARY 2010, WHEREAS THE SAME WAS FILED ON 11.03.2010. THE APPE AL WAS FILED BEYOND THE DUE DATE THEREFORE THE SAME IS NOT ADMIT TED AS PER THE PROVISIONS OF SEC.249 OF I.T.ACT 1961, THE APPEAL I S TREATED AS DISMISSED FOR STATISTICAL PURPOSES. 3.1. AGGRIEVED, ASSESSEE HAS PREFERRED THE PRESENT A PPEAL AND RAISED AS MANY AS THIRTEEN GROUNDS, MAINLY ON DISMISS ING THE APPEAL WITHOUT GIVING PROPER OPPORTUNITY TO ASSESSEE. 4. LD. COUNSEL SUBMITTED THAT CIT(A) SHOULD HAVE GIVEN AN OPPORTUNITY BEFORE DISMISSING THE APPEAL, AS ASSESSE E HAS VALID REASONS TO RECORD THAT IT WAS SERVED ON 25-02-2010. 5. LD. DR HOWEVER, SUBMITTED THAT APPEAL IS NOT MAINTAIN ABLE AS PER THE PROVISIONS OF SECTION 249 OF THE ACT. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERU SED THE ORDER OF THE LD.CIT(A). LD.CIT(A) HAS NOT GIVEN ANY OPPORTUNITY TO ASSESSEE CALLING FOR ITS OBJECTIONS OR EXPLANATION BEF ORE INVOKING THE PROVISIONS OF SECTION 249. AS SEEN FROM FORM 35, ASSESSEE HAS RECORDED THAT THE ORDER WAS RECEIVED ON 25-02-2010 AND APPEAL I.T.A. NO. 462/HYD/2016 M/S. SANDHYA HOTELS PVT. LTD., :- 3 -: WAS PREFERRED ON 11-03-2010, WHICH IS WITHIN THE TIME PRESCRIBED UNDER THE PROVISIONS. IN CASE CIT(A) HAS NOTED THAT TH E ACKNOWLEDGEMENT WAS AVAILABLE, HAVING SERVED THE ORDE R ON 31-12- 2009, THE DATE ON WHICH THE ASSESSMENT ITSELF WAS PASSE D, THEN, ASSESSEE SHOULD HAVE BEEN GIVEN AN OPPORTUNITY TO EX PLAIN WHY IT HAS NOTED AS 25-02-2010 IN THE FORM 35 INCORRECTLY. NO SUCH ACTION WAS TAKEN BY THE CIT(A). AS PRINCIPLES OF NATU RAL JUSTICE HAVE NOT BEEN FULFILLED IN THIS CASE, WE ARE OF THE O PINION THAT THE ORDER OF THE CIT(A) SHOULD BE SET ASIDE AND APPEAL I S TO BE RESTORED TO THE FILE OF CIT(A) TO CALL FOR EXPLANATION OF ASSESS EE, GIVING DUE OPPORTUNITY AND CONSIDER WHETHER APPEAL IS FILED IN T IME OR NOT? ACCORDINGLY, THE ORDER IS SET ASIDE AND APPEAL IS RE STORED TO THE FILE OF CIT(A). 7. IN THE RESULT, APPEAL OF ASSESSEE IS CONSIDERED AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH NOVEMBER, 2016 SD/- SD/- (D. MANMOHAN) (B. RAMAKOTAIAH) VICE PRESIDENT ACCOUNTANT MEMB ER HYDERABAD, DATED 16 TH NOVEMBER, 2016 TNMM I.T.A. NO. 462/HYD/2016 M/S. SANDHYA HOTELS PVT. LTD., :- 4 -: COPY TO : 1. M/S. SANDHYA HOTELS PVT. LTD., HYDERABAD. C/O. P. MURALI & CO., CHARTERED ACCOUNTANTS, 6-3-655/2/3 , 1 ST FLOOR, SOMAJIGUDA, HYDERABAD. 2. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRC LE-6, HYDERABAD. 3. CIT (APPEALS)-3, HYDERABAD. 4. PR.CIT-3, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.