Country Club Hospitality & Holidays Limited , Hyderabad V. Income Tax Officers ,Ward -1(2), Hyderabad

ITA 548/Hyd/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 8676 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-02-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Assessment Year: 2012-2013
• Appeal Filed On: 26-12-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; TDS
• Section: 148; 43B; 139; 143(3); 143(2); 113; 13; 153

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES “B”: HYDERABAD (THROUGH VIRTUAL CONFERENCE) BEFORE SH RI SAT B EER S INGH GO DA RA , JU DI CIA L MEMBE R AND SHR I L AXMI PR AS A D SAHU , AC COUNT ANT MEMBE R ITA No. 548/H/2021 Assessment Year: 2012-13 Country Club Hospitality & Holidays Ltd., Hyderabad. PAN – AAACC 8276 B Vs. Income-tax Officer, Ward – 1(2), Hyderabad. (Appellant) (Respondent) Assessee by: Shri P. Murali Mohan Rao Revenue by: Shri Rohit Mujumdar Date of hearing: 08/02/2022 Date of pronouncement: 17/02/2022 O R D E R PER L.P. SAHU, A.M.: This appeal filed by the Assessee is directed against CIT(A), National Faceless Appeal Centre (NFAC), Delhi’s order dated 08/10/2021 for AY 2012-13 involving ITA No.. 548/Hyd/2021 C o u n t r y C l u b H o s p i t a l i t y & H o l i d a y s L t d . , H y d . :- 2 -: proceedings u/s 143(3) r.w.s. 147 of the Income Tax Act, 1961 ; in short “the Act. 1.1 We notice at the outset that assessee’s instant appeal suffers from 20 days delay in filing before the ITAT. In this connection, the assessee has filed a petition for condonation along with an affidavit, wherein, inter-alia, it was stated that the appeal papers were misplaced by one of its staff, which caused the impugned delay in filing the appeal belatedly. 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. 2. The assessee has raised 12 grounds of appeal and the sum and substance of which is against the action of the AO in reopening the assessment u/s 147 of the Act and making the disallowance u/s 43B towards PF, ESI and TDS, which were confirmed by the CIT(A). The grounds raised by the assessee are as under: ITA No.. 548/Hyd/2021 C o u n t r y C l u b H o s p i t a l i t y & H o l i d a y s L t d . , H y d . :- 3 -: Space left intentionally ITA No.. 548/Hyd/2021 C o u n t r y C l u b H o s p i t a l i t y & H o l i d a y s L t d . , H y d . :- 4 -: Space left intentionally ITA No.. 548/Hyd/2021 C o u n t r y C l u b H o s p i t a l i t y & H o l i d a y s L t d . , H y d . :- 5 -: 3. The assessee also filed an application dated 04/02/2022 to admit the following additional grounds: 3.1 After hearing the ld. AR, we admit the above grounds. 4. Briefly the facts of the case are that the assessee M/s country Club Hospitality & Holidays Limited, filed its Return of Income for the Asst.Year 2012-13 on 26-09-2012 declaring income at Rs. 3,39,39,691/- under normal provisions and book profit of Rs. 25,76,68,660/- under the provisions of section 115JB. The case was selected under scrutiny through CASS and assessment u/s 143(3) of IT Act ITA No.. 548/Hyd/2021 C o u n t r y C l u b H o s p i t a l i t y & H o l i d a y s L t d . , H y d . :- 6 -: was completed on 30.03.2015 assessing income at Rs. 3,91,58,967/-. 4.1 Subsequently, the AO noticed that the assessee deducted TDS, PF and ESI from employees but neither deposited it to the Government account nor issued TDS challan to the employees concerned. Further, the AO noticed that in note-9 of the balance sheet, the assessee had shown an amount of Rs.55,85,791/- as PF payable, Rs.24,11,672/- as ESI payable and Rs. 2,32,16,784/- as TDS payable totaling to Rs.2,32,16,784/- on the basis of information from DDIT, Calcutta & Hyderabad. According to the AO, the remittances of PF, ESI and TDS, into Government account beyond due date of filing of return of income is not allowable expenditure under the provisions of section 43B of IT Act, and, therefore, income to this extent had escaped assessment. He, therefore, reopened the assessment by issuing a notice u/s 148 of IT Act dated 22.03.2019. In response, the assessee company had filed return of income on 22-04-2019 declaring income at Rs.3,39,39,690/-. Subsequently, Notices u/s 143(2) of IT Act dated 09.11.2019 & 22.11.2019 respectively were issued to the assessee calling for the details of expenses towards PF payable, ESI payable, TOS payable and also short term provisions shown at Rs.30,32,19,026/-. However, the assessee could not furnish evidence for the payment of PF, ESI and TDS payable to the tune of Rs.2,32, ITA No.. 548/Hyd/2021 C o u n t r y C l u b H o s p i t a l i t y & H o l i d a y s L t d . , H y d . :- 7 -: 16,784/-. The AO, accordingly disallowed the amounts under the heads PF, ESI and TDS u/s 43B of the Act. 5. Aggrieved by the order of AO, the assessee preferred an appeal before the CIT(A) and filed elaborate written submissions along with case law, which were extracted by the CIT(A) in his order at pages 4 to 10. After considering the submissions of the assessee, the CIT(A) upheld the disallowances made by the AO by holding that the assessee did not furnish any evidence to prove that the amounts towards PF, ESI and TDS were paid before the due date of filing of return of income. 6. Aggrieved by the order of the CIT(A), the assessee is in appeal before the ITAT. 7. Before us, the ld. AR of the assessee reiterated the submissions made before the lower authorities and submitted that the AO has erroneously reopened the case of the assessee u/s 147 of the Act as the then AO in course of original assessment proceedings had instigated scrutiny wherein he verified every aspect of line items of financials. He further submitted that the AO reopened the assessment only based on the information already available during the course of original assessment proceedings u/s 143(3) o the Act and no evidence was available with the AO with respect to the addition made by him and simply made the additions ITA No.. 548/Hyd/2021 C o u n t r y C l u b H o s p i t a l i t y & H o l i d a y s L t d . , H y d . :- 8 -: based on the information available in 14393) proceedings towards belated payments of PF & ESI. He contended that the AO reopened the assessment without any tangible material on hand and without satisfying himself as to the escapement of income and, thus, the basic requirement of satisfaction of the AO for reopening the assessment is missed in this case. He further submitted that the case of the assessee has been reopened re-opened beyond 4 years and the case. He submitted that the case was scrutinized u/s 143(3) and the assessee had fully and truly disclosed all the material facts before the AO for completing the assessment. He submitted that even the AO has not recorded the words “fully and truly” in the reasons recorded for reopening the assessment. He, therefore, submitted that the order passed u/s 143(3) rws 147 may be quashed. 7.1 The ld. AR also submitted that the AO made reopening of the assessment beyond 4 years. For this, he relied on the following cases: 1. MSEB Holding Co. Ltd., [2020] 113 taxmann.com 163(SC) 2. GB Bros. & Konda Rajagopala Chetty Beedi Factory (P) Ltd., [2003] 132 Taxman 737 (AP) 3. Tns India Pvt. Ltd., ITA No. 515/Hyd/2015. 8. The ld. DR, on the other hand, relied on the orders of lower authorities and submitted that the lower authorities have rightly disallowed the amounts under PF & ESI as the ITA No.. 548/Hyd/2021 C o u n t r y C l u b H o s p i t a l i t y & H o l i d a y s L t d . , H y d . :- 9 -: assessee did not deposit into Govt. Accounts within the time frame stipulated in the respective Acts. He submitted that the assessee failed to furnish the proof of payments made before the due date of filing of return of income. Further, the ld. DR submitted that there was tangible material available with the AO in the form of investigation report mentioned in the reasons record. He, therefore, submitted that there is no change of opinion as argued by the ld. AR of the assessee. 9. We have considered the rival submissions and perused the material on record as well as gone through the orders of revenue authorities. In this connection, we refer to the provisions of section 147, which read as under: “Income escaping assessment. 147. If the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year) : Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken ITA No.. 548/Hyd/2021 C o u n t r y C l u b H o s p i t a l i t y & H o l i d a y s L t d . , H y d . :- 10 -: under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year: Provided further that nothing contained in the first proviso shall apply in a case where any income in relation to any asset (including financial interest in any entity) located outside India, chargeable to tax, has escaped assessment for any assessment year: Provided also that the Assessing Officer may assess or reassess such income, other than the income involving matters which are the subject matters of any appeal, reference or revision, which is chargeable to tax and has escaped assessment. Explanation 1.—Production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the foregoing proviso. Explanation 2.—For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely :— (a) where no return of income has been furnished by the assessee although his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to income-tax; (b) where a return of income has been furnished by the assessee but no assessment has been made and it is noticed by the Assessing Officer that the assessee has understated the income or has claimed ITA No.. 548/Hyd/2021 C o u n t r y C l u b H o s p i t a l i t y & H o l i d a y s L t d . , H y d . :- 11 -: excessive loss, deduction, allowance or relief in the return ; (ba) where the assessee has failed to furnish a report in respect of any international transaction which he was so required under section 92E; (c) where an assessment has been made, but— (i) income chargeable to tax has been underassessed; or (ii) such income has been assessed at too low a rate; or (iii) such income has been made the subject of excessive relief under this Act; or (iv) excessive loss or depreciation allowance or any other allowance under this Act has been computed; (ca) where a return of income has not been furnished by the assessee or a return of income has been furnished by him and on the basis of information or document received from the prescribed income-tax authority, under sub-section (2) of section 133C, it is noticed by the Assessing Officer that the income of the assessee exceeds the maximum amount not chargeable to tax, or as the case may be, the assessee has understated the income or has claimed excessive loss, deduction, allowance or relief in the return; (d) where a person is found to have any asset (including financial interest in any entity) located outside India. Explanation 3.—For the purpose of assessment or reassessment under this section, the Assessing Officer may assess or reassess the income in respect of any issue, which has escaped assessment, and such issue comes to his notice subsequently in the course of the proceedings under this section, notwithstanding that ITA No.. 548/Hyd/2021 C o u n t r y C l u b H o s p i t a l i t y & H o l i d a y s L t d . , H y d . :- 12 -: the reasons for such issue have not been included in the reasons recorded under sub-section (2) of section 148. Explanation 4.—For the removal of doubts, it is hereby clarified that the provisions of this section, as amended by the Finance Act, 2012, shall also be applicable for any assessment year beginning on or before the 1st day of April, 2012.” 8.1 The AO has recorded the reasons for reopening the assessment which are as under: The assessee-company, M/s Country Club India Pvt Ltd engaged in the business of entertaining & hospitality, filed its return of income for the AY2012-13 on 26-09- 2012 admitting an income of Rs.3,39,39,691/- under normal provisions and book profit of Rs.25,76,68,660/- u/s115JB. The case was selected for scrutiny under CASS and assessment was completed u/s/143(3) on 30- 03-3015 by determining total income of Rs.3,91,58,970/- under normal provisions. Subsequently, as per the information received from OOIT{lnv) ,Unit 1(3), Kolkatta and also V basing on the enquiries conducted, it is found that assessee had deducted TOS and PF from the employees but neither deposited it to the Government Account nor issued TOS challan to the employee concerned. it also issued bogus TOS certificates. By this modus operandi assessee- company makes huge loss to the revenue. Further, when financial statements submitted by the assessee were verified, it was seen that the assessee has shown an amount of Rs.30,32,19,076/- under the head 'short term provisions' in its Balance Sheet. When the break-up of schedule 9 (short term provisions) of the Balance Sheet was checked, an amount of Rs.55,85,79.1/-, 24,11,672/- & 1,52,19,321/- (Total ITA No.. 548/Hyd/2021 C o u n t r y C l u b H o s p i t a l i t y & H o l i d a y s L t d . , H y d . :- 13 -: Rs.2,32,16,784/-) was shown as PF payable, ESI payable and TOS payable respectively. The remittances of PF, ESI & TOS amounting to Rs.2,32,16,784/- into the government account beyond the due date of furnishing of return of income is not an allowable expenditure u/s.43B of the Act. The same needs to be disallowed from the computation of income filed for AY2012-13 by M/s. Country Club India Ltd. It is also observed that assessee company has deducted PF, ESI and TOS payments from salaries and did not deposit into respective accounts/government accounts within the time frame stipulated in the respective acts and IT Act. Therefore, assessee has deliberately did not furnish /disclose all material facts. in this case in 3CD report filed for the Asst. Year 2012- 13, it was mentioned that there was no outstanding PF, ESI, TOS payable to government. account. Similarly, financial account though indicates that short term provisions of Rs.30,32,19,026/-, breakup of the same was not available in schedules provided to balance sheet .As per the enquiries conducted by DDIT(lnv) Unit 1(3) .Hyderabad and also basing on information received that assessee company is indulging in practice of non-payment of 10S, PF, ESI collected from employees to government account revealed that short term provisions "Rs 30,32,19,026/-, " indicated by assessee includes PF ,ESI TDS payable of Rs 2,32,16,784. Assessee company inspite of providing sufficient opportunities could not produce evidence of remittance of above amounts before filing return of income which means taxable income to the extent of Rs.2,32,16,784/- has escaped assessment for the AY2012-13 by failure on part of assessee to disclose all material facts with respect to remittances of PF, ESI, TDS which are relevant for the asst year 2012-13. In view of the above, the provisions of clause (a) of Explanation 2 of Section 147 of the IT Act are ITA No.. 548/Hyd/2021 C o u n t r y C l u b H o s p i t a l i t y & H o l i d a y s L t d . , H y d . :- 14 -: applicable to the facts of the case and the assessment year under consideration is deemed to be a fit case where income chargeable to tax has escaped assessment. Submitted for necessary approval of Pr. Commissioner of Income tax -1 Hyderabad.” 8.2 On perusal of the said reasons recorded, we find that the AO recorded that “taxable income to the extent of Rs. 2,32,16,784/- has escaped assessment for the AY 2012-13 by failure on the part of the assessee to disclose all material facts with respect to remittances of PF, ESI, TDS which are relevant for the AY 2012-13. Whereas the language used in section 147 is that “where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year”. The AO failed to record the words “fully and truly” all material facts necessary for assessment. Therefore, we are of the view that the AO has failed to record the reasons to the satisfaction of the section 147, under which, the assessment ITA No.. 548/Hyd/2021 C o u n t r y C l u b H o s p i t a l i t y & H o l i d a y s L t d . , H y d . :- 15 -: was reopened. Further, as contended by the ld. AR that there is neither any new information available with the AO nor any new tangible material in hand other than the information already existing in original assessment and further, there was no failure on the part of the appellant company to fully and truly disclose the material facts necessary for the assessment.. The ld. DR has filed a paper book containing pages 1 to 26, in which, copy of reasons recorded has been placed at pages 1 to 3 and the approval from Pr. CIT is at page 4. We observe that the reasons recorded by the AO, Ward - 1 (3), whereas, assessment was framed by ITO, Ward – 1(2), Hyderabad. From the reasons recorded, we observe that nowhere it is mentioned that there was any incumbency. In the light of these observations, we are of the view that the AO, who has framed the assessment order has not applied his mind properly before reopening the case of the assessee u/s 147 of the Act Thus, there is no sufficient and impeachable reason for reopening the assessment u/s 147 of the Act. Therefore, in the facts and circumstances of the case the issuance of notice u/s 148 and consequently passing of assessment u/s 147 of the Act is unsustainable. Accordingly, we quash the assessment order passed by the AO u/s 143(3) read with section 147 of the Act. Since the assessment itself is quashed, additions made on such assessment do not survive. ITA No.. 548/Hyd/2021 C o u n t r y C l u b H o s p i t a l i t y & H o l i d a y s L t d . , H y d . :- 16 -: 9. In the result, appeal of the assessee is allowed in above terms. Pronounced in the open court on 17 th February 2022. Sd/- Sd/- (S.S. GODARA) (L. P. SAHU) JUDICIAL MEMBER ACCOUNTANT MEMBER Hyderabad, Dated: 17 th February, 2022. kv Copy to : 1 Country Club Hospitality & Holidays Ltd., C/o P. Murali & Co., CAs, 6-3-655/2/3, 1 st Floor, Somajiguda, Hyderabad – 82 2 ITO Ward – 1(2), Hyderabad. 3 CIT(A), NFAC, Delhi 4 ITAT, DR, Hyderabad. 5 Guard File.