Renovar Energy Private Limited , Hyderabad V. Income Tax Officer, Ward-3(2), Hyderabad

ITA 48/Hyd/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2075 (ITAT-HYDERABAD)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-B
• Assessment Year: 2013-2014
• Appeal Filed On: 09-01-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NILANJAN DEY
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER IT A NO. 48 /HYD/201 9 ASSESSMENT YEAR: 201 3 - 14 M/S. RENOVAR ENERGY PRIVATE LIMITED, NO.C - 27, VIKARAMPURI COLONY, HYDERABAD 009. PAN: AAFCR 3430 B VS. THE INCOME TAX OFFICER, WARD - 3(2), HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY: SR I K.C. DEVDAS REVENUE BY: SRI NILANJAN DEY, DR DATE OF HEARING: 13/ 0 6 /2019 DATE OF PRONOUNCEMENT: 19 /0 6 /2019 ORDER PER A. MOHAN ALANKAMONY, A.M: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) - 3, HYDERABAD ON 1 1 /0 4 /2018 IN APPEAL NO.0211/ITO - 3(2)/HYD /CIT(A) - 3/2016 - 17 PASSED U/S 143(3) AND U/S 250(6) OF THE ACT FOR THE ASSESSMENT YEAR 2013 - 14 . 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE - COMPANY, ENGAGED IN THE BUSINESS OF SOLAR POWER GENERATION , FILED ITS RETURN OF INCOME ON 24/09/2013 FOR THE ASS ESSMENT YEAR 2013 - 14 DECLARING LOSS OF RS. 1,91,51,684 / - . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE A.O. 2 MADE CERTAIN DISALLOWANCES AND THE ASSESSED INCOME WAS DETERMINED AT RS. 1,17,87,014/ - . 3. AGGRIEVED BY THE ORDER OF THE LD. A.O., ASSESSEE FILED AN APPEAL MANUALLY, BEFORE THE LD. CIT(A) . ON THE DATE OF HEARING OF THE APPEAL BEFORE THE FIRST APPELLATE AUTHORITY, NONE APPEARED ON BEHALF OF THE ASSESSEE. THE LD. CIT(A) OBSERVED THAT THE ASSESSEE IS REQUIRED TO FILE THE APPEAL ELECTRONICALLY W HICH IS MANDATORY AND ACCORDINGLY DISMISSED THE ASSESSEES APPEAL INLIMINE. 4. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), ASSESSEE IS IN APPEAL BEFORE US. 5. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS WAS THE FIRST YEAR IN WHICH THE ASSESSEE WAS REQUIRED TO FILE THE APPEAL ELECTRONICALLY, BUT THE ASSESSEE HAS FILED THE APPEAL MANUALLY WITHIN THE TIME LIMIT PRESCRIBED IN THE STATUTE. HE PRAYED AN OPPORTUNITY FOR FILING THE APPEAL ELECTRONICALLY MAY BE GRANTED AND THEREAFTER THE APPEAL MAY BE DECIDED ON MERITS. 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, ARGUED IN SUPPORTED OF THE ORDER OF THE CIT(A). 7. HAVING REGARD TO THE RI VAL CONTENTIONS AND THE MATERIAL ON RECORD, WE FIND THAT THIS IS THE FIRST YEAR WHERE THE APPEALS WERE REQUIRED TO BE FILE BEFORE THE LD.CIT(A) ELECTRONICALLY, HOWEVER, THE ASSESSEE HA S FILED THE APPEAL WITHIN THE TIME BEFORE THE CIT(A) MANUALLY AND NOT 3 EL ECTRONICALLY . UNDER SIMILAR CIRCUMSTANCES, THE HONBLE JURISDICTIONAL HIGH COURT HAS CONSIDERED THE VERY SAME ISSUE IN W.P.NO. 21099/2018 IN THE CASE OF M/S. RAYALASEEMA BULLION AND COMMTRADE PRIVATE LIMITED VS. CIT(A) - 3, HYDERABAD WHEREIN THE HONBLE HIG H COURT HAS DIRECTED THE ASSESSEE TO E - FILE ITS APPEAL WITHIN THE STIPULATED TIME PRESCRIBED IN THE ORDER AND THE CIT (A) WAS DIRECTED TO CONSIDER THE SAME AND ADJUDICATE THE APPEAL ON MERITS. THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT WAS ALSO FOLLOWED BY THIS BENCH OF THE TRIBUNAL IN ITA NO. 862/HYD/2018 VIDE ORDER DATED 12/03/2019 FOR THE ASSESSMENT YEAR 2011 - 12. FOR THE SAKE OF READY REFERENCE, RELEVANT PORTION OF THE ORDER OF THE HONBLE JURISDICTIONAL HIGH COURT IS EXTRACTED HEREIN BELOW FOR REFERENCE: - THE GRIEVANCE OF THE PETITIONER COMPANY IN THIS CASE IS WITH REGARD TO THE ACTION OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 3, HYDERABAD, THE FIRST RESPONDENT HEREIN, IN PASSING ORDER DATED 12/03/2018 IN ITA NO.0152/ITO - 3(2 )/HYD/CIT(A) - 3/2016 - 17, IN RELATION TO THE ASSESSMENT YEAR 2013 - 14, WHEREBY THE PETITIONER - COMPANYS APPEAL WAS DISMISSED IN LIMINI ON THE GROUND THAT IT HAD FAILED TO E - FILE THE SAID APPEAL AS MANDATORILY REQUIRED. HAVING RECEIVED INSTRUCTIONS IN THE MAT TER, SRI VINOD KUMAR TADAKAMALLA, LEARNED SENIOR STANDING COUNSEL FOR THE REVENUE, WOULD INFORM THIS COURT THAT THE ASSESSMENT ORDER UNDER APPEAL BEFORE THE FIRST RESPONDENT WAS DATED 29/03/2016 AND WAS RECEIVED BY THE PETITIONER COMPANY ON 04/04/2016. AGG RIEVED THEREBY, THE PETITIONER COMPANY FILED AN APPEAL MANUALLY ON 03/05/2016. WHILE SO, RULE 45 OF THE INCOME TAX RULES, 1962 (FOR BREVITY, THE RULES OF 1961) WAS AMENDED WITH EFFECT FROM 01/03/2016 REQUIRING FILING OF APPEALS IN E - FORMAT. HOWEVER, OWIN G TO THE GLITCHES IN IMPLEMENTATION OF THIS NEW PROCEDURE, THE CENTRAL BOARD OF DIRECT TAXES, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, ISSUED CIRCULAR NO.20/2016 DATED 26/05/2016 SEEKING TO MITIGATE THE INCONVENIENCE CAUSED TO THE T AXPAYERS ON ACCOUNT OF THE NEW REQUIREMENT OF MANDATORY E - FILING OF APPEALS AND EXTENDED THE TIME LIMIT FOR FILING OF THE APPEALS WHICH WERE TO BE FILED BY 15/05/2016 UP TO 15/06/2016. THE BOARD FURTHER DIRECTED THAT ALL E - APPEALS FILED WITHIN THE EXTENDE D PERIOD SHOULD BE TREATED AS APPEALS FILED WITHIN TIME. 4 IN THE CASE ON HAND, IT APPEARS THAT THE APPEAL FILED BY THE PETITIONER COMPANY WAS NOT RETURNED ON THE GROUND THAT IT HAD NOT BEEN E - FILED IN TERMS OF THE AMENDED RULE 45 OF THE RULES OF 1962. HAV ING KEPT THE APPEAL PENDING AFTER NUMBERING IT, THE APPELLATE AUTHORITY ULTIMATELY DISMISSED IT ON THE GROUND THAT IT WAS NOT E - FILED. WHEN THE CENTRAL BOARD OF DIRECT TAXES ITSELF SAW IT FIT TO EXTEND THE TIME FOR E - FILING OF APPEALS, HAD THE APPEAL FILE D BY THE PETITIONER COMPANY BEEN RETURNED ON THE GROUND IT WAS NOT FILED AS PER THE DUE PROCEDURE, THE PETITIONER COMPANY COULD HAVE TAKEN STEPS TO FILE IT WITHIN THE EXTENDED TIME. AS THE APPEAL WAS NOT RETURNED TO IT AND WAS NUMBERED, ON THE OTHER HAND, THE PETITIONER COMPANY WAS UNDER THE BELIEF THAT ITS APPEAL WOULD BE ENTERTAINED. THIS BEING THE FACT SITUATION, THE PETITIONER COMPANY CANNOT BE PENALIZED FOR NOT RESORTING TO E - FILING OF ITS APPEAL WITHIN THE EXTENDED TIME AS STIPULATED BY THE BOARD. IN SUCH CIRCUMSTANCES, THE WRIT PETITION IS ALLOWED TO THE EXTENT OF SETTING ASIDE THE ORDER DATED 12/03/2018 PASSED BY THE FIRST RESPONDENT IN ITA NO. 0152/ITO - 3(2)/HYD/CIT(A) - 3/2016 - 17. THE FIRST RESPONDENT SHALL RETURN THE SUBJECT APPEAL TO THE PETITIO NER COMPANY WITHIN ONE WEEK FROM THE DATE OF RECEIPT OF A COPY OF THIS ORDER AND THEREUPON, THE PETITIONER COMPANY SHALL E - FILE ITS APPEAL IN ACCORDANCE WITH THE DUE PROCEDURE WITHIN TWO WEEKS THEREAFTER. IN THE EVENT THE PETITIONER COMPANY FILES ITS APPE AL THROUGH E - FORMAT AS DIRECTED SUPRA, THE APPELLATE AUTHORITY SHALL CONSIDER THE SAID APPEAL ON ITS OWN MERITS WITHOUT REFERENCE TO THE LIMITATION ASPECT AS IT IS AN ADMITTED FACT THAT THE SAID APPEAL WAS ORIGINALLY FILED WITHIN TIME. THE PETITIONER COMP ANY IS AT LIBERTY TO RAISE ADDITIONAL GROUNDS IN THE SAID APPEAL AT THE TIME OF PERSONAL HEARING. PENDING MISCELLANEOUS PETITIONS, IF ANY, SHALL STAND CLOSED IN THE LIGHT OF THIS FINAL ORDER. NO ORDER AS TO COSTS. 8. R ESPECTFULLY FOLLOWING THE DEC ISION OF THE HONBLE JURISDICTIONAL HIGH COURT (SUPRA) , WE HEREBY GRANT LIBERTY TO THE ASSESSEE TO FILE ITS APPEAL ELECTRONICALLY WITHIN TWO WEEKS FROM THE DATE OF RECEIPT OF THIS ORDER AND IF THE APPEAL IS FILED WITHIN SUCH PERIOD , THE LD. CIT(A) SHALL DISPOSE OF F THE APPEAL ON MERITS AFTER PROVIDING THE ASSESSEE WITH PROPER OPPORTUNITY OF BEING HEARD WITHIN REASONABLE TIME WITHOUT REFERENCE TO THE LIMITATION ASPECT AS IT IS AN ADMITTED FACT THAT THE APPEAL WAS 5 ORIGINALLY FILED MANUALLY WITHIN THE TIME LIMIT STIPULATED UNDER THE ACT . IT IS ORDERED ACCORDINGLY. 9. IN THE RESULT, ASSESSEES APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 19 TH JUNE, 2019. SD/ - SD/ - ( P. MADHAVI DEVI ) ( A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED: 19 TH JUNE , 2019 OKK COPY TO: - 1) M/S. RENOVAR ENERGY PRIVATE LIMITED, NO.C - 27, VIKRAMPURI COLONY, HYDERABAD 500 009. 2) INCOME TAX OFFICER, WARD - 3(2), HYDERABAD. 3) THE CIT(A) - 3, HYDERABAD 4) THE PR. CIT - 3, HYDERABAD 5) THE DR, ITAT, HYDERABAD 6) GUARD FILE