Voruganti Venkata Ramana Roa, Hyderabad V. Joint Commissioner of Income Tax, Karimnagar

ITA 503/HYD/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0356 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 13-04-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 21-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G APARNA RAO
• Assessee Lawyers: P RAVI SESHAGIRI RAO
• Keywords: Opportunity of being heard; Period of limitation; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO. 503/HYD/2014 ASSESSMENT YEAR: 2009-10 VORUNGANTI VENKATA RAMANA RAO, HYDERABAD PAN AAOPV8461C VS. JT. COMMISSIONER OF INCOME- TAX, KARIMNAGAR RANGE, KARIMNAGAR (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI P. RAVISESHAGIRI RAO REVENUE BY : SMT. G. APARNA RAO DATE OF HEARING 13-04-2015 DATE OF PRONOUNCEMENT 17-04-2015 O R D E R PER SAKTIJIT DEY, J.M.: THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER DATED 18/12/2014 PASSED BY LD. CIT(A)-III, HYDERABAD DISM ISSING ASSESSEES APPEAL EXPARTE AND IN-LIMINE WITHOUT CONDONING DELA Y. APPEAL PERTAINS TO AY 2009-10. 2. BRIEFLY THE FACTS ARE, ASSESSEE AN INDIVIDUAL IS ENGAGED IN THE BUSINESS OF EXECUTING CIVIL CONTRACT WORKS. FOR THE AY UNDER CONSIDERATION, ASSESSEE FILED HIS RETURN OF INCOME ON 30/09/2009 D ECLARING TOTAL INCOME OF RS. 68,12,247. IN COURSE OF ASSESSMENT PROCEEDING, AO NOTICED THAT ASSESSEE HAS DEBITED AN AMOUNT OF RS. 47,68,910 TO P&L A/C TOWARDS HIRE CHARGES, HOWEVER, ASSESSEE HAS NOT DEDUCTED ANY TAX AT SOURCE ON SUCH PAYMENTS. AS ACCORDING TO AO, PROVISIONS OF SECTION 194-I APPLIES. THOUGH, 2 ITA NO. 503 /HYD/2014 VORUGANTI VENKATA RAMANA RAO ASSESSEE SUBMITTED THAT THE PROVISIONS OF SECTION 1 94-I ARE NOT APPLICABLE BUT AO REJECTING THE SUBMISSIONS OF ASSESSEE HELD THAT PAYMENTS MADE BEING IN THE NATURE OF PAYMENTS REFERRED TO IN SECT ION 194-I ARE SUBJECT TO DEDUCTION OF TAX AT SOURCE. ON FURTHER VERIFICATION , AO FOUND THAT PAYMENTS EXCEEDING THE THRESHOLD LIMIT OF RS. 1,20,000 TO EA CH HIRER AMOUNTED TO RS. 27,07,010 DURING THE YEAR. ACCORDINGLY, AO APPLYIN G THE PROVISIONS OF SECTION 40(A)(IA) DISALLOWED THE SAID AMOUNT AND AD DED BACK TO THE INCOME OF ASSESSEE. BEING AGGRIEVED OF THE ASSESSMENT ORD ER SO PASSED, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A). 3. AS IT APPEARS FROM THE FACTS ON RECORD, APPEAL W AS FILED BEFORE LD. CIT(A) WITH A DELAY OF 135 DAYS. AS OBSERVED BY LD. CIT(A) IN THE ORDER PASSED BY HIM, THOUGH, ASSESSEE WAS GIVEN OPPORTUNI TY TO EXPLAIN THE DELAY, SINCE NEITHER ANY ONE APPEARED ON BEHALF OF ASSESSEE NOR EXPLAINED THE CAUSE OF DELAY ON THE DATE FIXED FOR HEARING, A PPEAL WAS DISMISSED ON THE GROUND OF DELAY WITHOUT BEING ADMITTED. BEING A GGRIEVED OF THE SAID ORDER OF LD. CIT(A), ASSESSEE IS BEFORE US. 4. THOUGH ASSESSEE HAS RAISED A NUMBER OF GROUNDS, BUT, AT THE TIME OF HEARING BEFORE US, LD. AR SUBMITTED AS LD. CIT(A ) HAS DISMISSED THE APPEAL EXPARTE WITHOUT AFFORDING A REASONABLE OPPOR TUNITY OF BEING HEARD TO ASSESSEE, THE MATTER MAY BE REMITTED TO LD. CIT(A) FOR ENABLING ASSESSEE TO EXPLAIN THE DELAY AS WELL AS REPRESENT HIS CASE ON MERIT. 5. LD. DR HAS NO SERIOUS OBJECTION IF THE MATTER I S REMITTED BACK TO THE FILE OF LD. CIT(A) FOR CONSIDERING AFRESH. 6. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERI ALS ON RECORD AS WELL AS THE ORDERS OF REVENUE AUTHORITIES. THERE IS NO DISPUTE TO THE FACT THAT APPEAL HAS BEEN DECIDED EXPARTE BY LD. CIT(A). HOWEVER, AS CAN BE SEEN, LD. CIT(A) HAS GIVEN THE FIRST DATE OF HEARIN G ON 13/02/2014. AS IT APPEARS, FOR WHATEVER MAY BE THE REASON, NO ONE REP RESENTED ASSESSEE ON THE SAID DATE OF HEARING. THEREFORE, LD. CIT(A) PRO CEEDED TO DISMISS APPEAL EXPARTE ON THE GROUND OF DELAY ON THE VERY SAME DAT E WITHOUT GIVING ANY FURTHER OPPORTUNITY TO ASSESSEE. IN OUR VIEW, LD. C IT(A) WAS NOT JUSTIFIED IN DISMISSING APPEAL EXPARTE ON THE VERY FIRST DATE O F HEARING. LD. CIT(A) 3 ITA NO. 503 /HYD/2014 VORUGANTI VENKATA RAMANA RAO SHOULD HAVE GIVEN AT LEAST ONE MORE OPPORTUNITY TO ASSESSEE TO REPRESENT HIS CASE BEFORE HIM. THEREFORE, IN THE INTEREST OF JUSTICE, WE ARE INCLINED TO SET ASIDE THE IMPUGNED ORDER OF LD. CIT(A) AND REMI T THE MATTER BACK TO HIS FILE FOR CONSIDERATION AFRESH. HOWEVER, IT NEEDS TO BE MENTIONED, APPEAL BEFORE LD. CIT(A) WAS FILED BY ASSESSEE WITH A DELA Y OF 135 DAYS. IT IS ALSO A FACT ON RECORD THAT ASSESSEE HAS NOT EXPLAINED CA USE FOR DELAY BEFORE LD. CIT(A), INSTEAD, ASSESSEE HAS FILED A PETITION BEFO RE THIS FORUM SEEKING CONDONATION OF DELAY BEING SUPPORTED BY AN AFFIDAVI T. SECTION 249(3) OF THE ACT EMPOWERS THE FIRST APPELLATE AUTHORITY TO ADMIT AN APPEAL AFTER EXPIRY OF THE PERIOD OF LIMITATION IF HE IS SATISFIED WITH TH E CAUSE FOR DELAY. SINCE, THE DELAY IN FILING OF APPEAL IS BEFORE LD. CIT(A), AS SESSEE HAS TO SATISFY THE AUTHORITY CONCERNED BY EXPLAINING THE CAUSE FOR DE LAY BEFORE HIM. THE TRIBUNAL CANNOT USURP THE POWER OF THE FIRST APPELL ATE AUTHORITY AND CONDONE THE DELAY. FOR THE AFORESTATED REASONS, WE DIRECT ASSESSEE TO EXPLAIN THE CAUSE FOR DELAY BEFORE LD. CIT(A) BY FI LING AN APPLICATION FOR CONDONATION OF DELAY. WE EXPECT, LD. CIT(A) WILL C ONSIDER THE EXPLANATION OF ASSESSEE FOR DELAY JUDICIOUSLY AND SYMPATHETICA LLY WITHOUT BEING TOO TECHNICAL, AND IF HE IS SATISFIED WITH THE CAUSE SH OWN, HE MAY DECIDE THE APPEAL ON MERIT AFTER CONDONING THE DELAY. NEEDLESS TO SAY, LD. CIT(A) MUST AFFORD DUE OPPORTUNITY OF BEING HEARD TO ASSESSEE. SINCE THE MATTER HAS BEEN REMITTED TO THE FILE OF LD. CIT(A), WE DECLINE TO DECIDE THE ISSUE RELATING TO THE ADDITION MADE BY AO ON MERIT. 7. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 17 TH APRIL, 2015. SD/- SD/- (B. RAMAKOTAIAH) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED: 17 TH APRIL, 2015 KV 4 ITA NO. 503 /HYD/2014 VORUGANTI VENKATA RAMANA RAO COPY TO:- 1) SHRI VORUGANTI VENKATA RAMANA RAO, C/O SRI S. RA MA RAO, ADVOCATE, FLAT NO. 102, H. NO. 3-6-643, SHRIYAS ELEGANCE, ST. NO. 9, HIMAYATNAGAR, HYDERABAD 500 029 2) JCIT, KARIMNAGAR RANGE, KARIMNAGAR 3) CIT(A)-III, HYDERABAD 4) CIT-II,, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDE RABAD.