Yona Smelters Private Limited, Visakhapatnam V. The Deputy Commissioner of Income Tax, Circle-5(1), Visakhapatnam

ITA 634/VIZ/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2591 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 18-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Keywords: Condonation of delay; Set aside
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM (T HROUGH WEB - BASED VIDEO CONFERENCING PLATFORM) BEFORE SHRI N.K. CHOUDHRY, HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH, HON'BLE ACCOUNTANT MEMBER I.T.A. NO S . 634 TO 636 /VIZ/2019 (ASST. YEAR : 2010 - 1 1 , 2012 - 13 & 2013 - 14 ) M/S. YONA SMELTERS PVT. LTD., 49 - 36 - 20, FLAT NO.B1, NIKHILS RESIDENCY , AKKAYYAPALEM, VISAKHAPATNAM . VS. DCIT , CIRCLE - 5(1), VISAKHAPATNAM. PAN NO. AAACY 3608 D (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE . DEPARTMENT BY : SMT.SUMAN MALIK, SR. DR DATE OF HEARING : 23 / 06 /2021 . DATE OF PRONOUNCEMENT : 23 / 0 6 /2021 . O R D E R PER BENCH THE S E APPEAL S HA VE BEEN PREFERRED BY THE ASSESSEE AGAINST THE SEPARATE ORDER S DATED 13 /03 /2019 , 14/03/2019 & 14/03/2019 IMPUGNED HEREIN PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 9 [FOR SHORT , LD. COMMISSIONER] , HYDERABAD U/SEC. 250(6) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'ACT') FOR THE A.Y S . 2010 - 11, 2012 - 13 & 2013 - 14 . 2 ITA NO. 634 - 636 / VIZ /201 9 ( M/S. YONA SMELTERS PVT. LTD. ) 2. A LL THE THREE APPEALS RELATE S TO THE SAME ASSESSEE AND HAVE BEEN DECIDED EXPARTE BY THE LD. COMMISSIONER . T HEREFORE , FOR THE SAKE OF CONVENIENCE, FACTS OF ITA NO. 634/VIZ/2019 HAVE BEEN TAKEN INTO CONSIDERATION FOR DISPOSAL OF ALL THE APPEAL S UNDER CONSIDERATION AND THE RESULT OF ITA NO. 634/VIZ/2019 SHALL APPLY MUTATIS MUTANDIS TO THE CONNECTED APPEALS HEREIN. 3 . AT THE OUTSET , IT WAS OBSERVED THAT THERE IS A DELAY OF 174 DAYS IN FILING OF THE APPEAL. THE ASSESSEE BY FILLING ITS APPLICATION WITH SUPPORTING AFFIDAVIT FOR CONDONATION OF DELAY HAS CLAIMED THAT BUSINESS OF COMPANY WENT INTO ROUGH WEATHER DUE TO SEVERE POWER CUTS AND THE MANUFACTURING OPERATION S OF THE COMPANY CAME TO COMPLETE HALT DURING THE IMPUGNED FINANCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER APPEAL. THEREFORE, THE ASSESSEE FILED ITS RETURN OF INCOME DECLARING LOSS AT NIL FOR THE SAID ASSESSMENT YEAR . THE ASSESSEE IS DRAGGED INTO VARIOUS LITIGATIONS INCLUDING THE MATTERS LIKE SARFAESI, VAT ETC. IN VARIOUS FORUMS INCLUDING HONBLE SUPREME COURT AND THE HIGH COURT . T HERE IS A COMPLETE CLOSURE OF MANUFACTURING ACTIVITY AND OTHER BUSINESS CRIPPLED FINANCIAL POSITION , BECAUSE OF WHICH COMPANY HAS ALSO BEEN CLOSED, THEREFORE THERE IS NO STAFF TO LOOK AFTER THE AFFAIRS OF THE COMPANY WHICH RESULTED INTO DELAY OF 174 DAYS IN FILING OF THE INSTANT APPEAL. 4 . LD. DR DID NOT REFUTE THE CLAIM OF THE ASSESSEE. 5. CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES AND THE REASONS STATED BY THE ASSESSEE, CAUSE FOR DELAY IN FILING OF THE APPEAL SEEMS TO BE PLAUSIBLE AND SUFFICIENT HENCE, FOR THE ENDS OF 3 ITA NO. 634 - 636 / VIZ /201 9 ( M/S. YONA SMELTERS PVT. LTD. ) JUSTICE, WE DEEM IT APPROPRIATE TO C ONDONE THE DELAY. CONSEQUENTLY , THE DELAY OF 174 DAYS IN FILING THE INSTANT APPEAL STANDS CONDONED. 6 . NOW COMING TO THE MERITS OF THE CASE. AS IT APPEARS FROM THE IMPUGNED ORDER PASSED BY THE LD. COMMISSIONER, VARIOUS OPPORTUNITIES HAVE BEEN GIVEN TO THE ASSESSEE. T HOUGH ON SOME OF THE OCCASIONS THE ASSESSEE APPEARED AND SOUGHT ADJOURNMENTS TO PRODUCE THE EVIDENCE, HOWEVER MOST OF THE TIME S NOT ATTENDED THE PROCEEDINGS. THEREFORE, FINDING NO OPTION THE LD. COMMISSIONER AFFIRMED THE ADDITIONS MADE BY TH E AO. IT IS NOT IN CONTROVERSY AS STATED IN THE APPLICATION FOR CONDONATION OF DELAY THAT THE MANUFACTURING OPERATIONS OF THE ASSESSEE HAS BEEN COMPLETELY CLOSED AND THE ASSESSEE IS CONTESTING VARIOUS LITIGATIONS BEFORE THE VARIOUS FORUMS AND THAT COULD BE A PLAUSIBLE REASON FOR NOT APPEARING BEFORE THE LD. COMMISSIONER. EVEN OTHERWISE WE REALISE THAT THE LD. COMMISSIONER DID NOT PASS THE ORDER BY GIVING INDEPENDENT FINDING IN ALL CASES AND JUS T AFFIRMED THE ORDER S OF THE AO EXCEPT PARTLY ALLOWING THE APPEAL VIDE IMPUGNED ORDER DATED 14 TH MARCH 2019 WHICH IS ALSO UNDER CHALLENGE IN ITA NO.635/VIZ/2019. 7. IT IS TO BE NOTED THAT IN ITA NO.635/VIZ/2019, THE ASSESSEE HAS RAISED THREE ISSUES. THOUG H, LD. COMMISSIONER GAVE DECISION ON ONE ISSUE IN FAVOUR OF THE ASSESSEE, HOWEVER, SUSTAINED THE OTHER TWO ISSUES WITHOUT GIVING ANY INDEPENDENT FINDING AND JUST PARTLY AFFIRMED THE ORDER OF THE AO. 8. CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES, IN OUR CONSIDERED VIEW , IT WOULD BE APPROPRIATE TO SET ASIDE THE ORDERS 4 ITA NO. 634 - 636 / VIZ /201 9 ( M/S. YONA SMELTERS PVT. LTD. ) PASSED BY THE LD. COMMISSIONER TO THE EXTENT UNDER CHALLENGE AND TO REMAND BACK THE CASES TO THE FILE OF THE LD. COMMISSIONER FOR DECISION AFRESH BY GIVING INDEPENDENT FINDING, ON THE ISSUES WHICH REMAIN ED UNDECIDED BY THE LD. COMMISSIONER . HENCE, ORDERED ACCORDINGLY. 9 . IN THE RESULT, ALL THE APPEAL S FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON TH IS 2 3 R D DAY OF JUNE , 2021 . S D / - S D / - (D.S. SUNDER SINGH) ( N.K. CHOUDHRY ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 2 3 R D JUNE , 20 2 1 . VR/ - COPY TO: 1. THE ASSESSEE - M/S. YONA SMELTERS PVT. LTD., 49 - 36 - 20, FLAT NO.B1, NIKHILS RESIDENCY, AKKAYYAPALEM, VISAKHAPATNAM. 2. THE REVENUE DCIT, CIRCLE - 5(1), VISAKHAPATNAM. 3. THE PR. CIT - 2 , VISAKHAPATNAM. 4. THE CIT(A) - 9 , HYDERABAD. 5. THE D.R . , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.