SEW & Prasad Joint Venture, Hyd, Hyderabad V. DCIT, Central Circle-7, Hyd, Hyderabad

ITA 745/HYD/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6195 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 18-05-2016
• Court: TRIBUNAL
• Department Lawyers: K J RAO
• Keywords: Reasonable cause; Capital receipt

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ITA NO. ASST. YEAR APPELLANT RESPONDENT 744/HYD/2016 2006 - 07 SEW & PRASAD JOINT VENTURE HYDERABAD [PAN: ABFFS1944M] THE D EPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-7, HYDERABAD 745 /HYD/2016 2007 - 08 FOR ASSESSEE : NONE FOR REVENUE : SHRI K.J. RAO, DR DATE OF HEARING : 19-09-2016 DATE OF PRONOUNCEMENT : 28-09-2016 O R D E R PER B. RAMAKOTAIAH, A.M. : THESE TWO APPEAL MEMOS ARE PREFERRED BY ASSESSEE AG AINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) -9, HYDERABAD DATED 29-02-2016. THE ONLY ISSUE IN THIS APPEAL IS WITH REFERENCE TO CLAIMING CREDIT OF TDS. ASSESSING OFFIC ER (AO) WAS OF THE VIEW THAT THE MOBILISATION ADVANCES RECEIVED BY ASS ESSEE WAS SHOWN AS CAPITAL RECEIPT IN THE BALANCE SHEET AND SIN CE THE SAME WAS NOT OFFERED TO TAX, THOUGH ASSESSEE IS CLAIMING CRE DIT FOR THE TAX, THE SAME WAS NOT ALLOWABLE. RELYING ON THE CASE OF M/S. BSC- RBM-PATIJB VS. CIT (ASSESSMENTS) ITAT, HYDERABAD IN ITA NO. 513/HYD/2011 DT. 23-11-2002. AO HAS NOT ALLOWED THE CREDIT FOR TDS IN THE IMPUGNED ASSESSMENT YEARS. LD.CIT(A) HAS CONFIRMED THE SAME. I.T.A. NOS. 744 & 745/HYD/2016 SEW & PRASAD JOINT VENTURE :- 2 -: 2. ASSESSEE HAS FILED THE FORM 36 WHICH WAS DEFECTIVE . THIS OFFICE HAS SENT A DEFECT NOTICE FOR WHICH ASSESSEE HAS FILED REVISED FORM 36. EVEN THOUGH THE SAME WAS STATED TO BE RECTIFIED , AS SEEN, THE VERIFICATION WAS SIGNED BY AN AUTHORISED SI GNATORY OF THE JOINT VENTURE. AS SEEN FROM FORM 35 FILED BEFORE THE CIT(A), ONE SHRI V. RAJASEKHAR HAS SIGNED APPEAL MEMO AS PARTNER OF THE JOINT VENTURE. HOWEVER, IN THIS CASE, FORM 36 WAS NOT SIGNE D BY ANY PARTNER. HOW AN AUTHORISED SIGNATORY CAN SIGN THE FO RM HAS NOT BEEN EXPLAINED. SINCE THE FORM FILED IS NOT VALID, THE APPEAL MEMO FILED IS NOT MAINTAINABLE. ON THAT REASON, THE APP EAL MEMO HAS TO BE REJECTED. 3. WHEN THE CASE WAS POSTED FOR HEARING EVEN THOUGH NO TICE WAS SERVED ON ASSESSEE, NONE APPEARED FOR ASSESSEE. IT SEEMS EVEN BEFORE THE CIT(A) ALSO, NONE APPEARED AND LD.CIT(A) DECIDED THE ISSUE EX-PARTE. IN SPITE OF SERVING NOTICES, ASSESSE E HAS NOT RESPONDED. IN THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ASSESSEE IS NOT INTERESTED IN PROSECUTING ITS APPEAL. 4. IT HAS BEEN HELD BY THE HONBLE SUPREME COURT IN T HE CASE OF B.N. BHTTACHARGEE & ANR., 118 ITR 461 THAT APPEAL DOES NOT MEAN ONLY FILING OF MEMO OF APPEAL BUT ALSO PURSU ING IT EFFECTIVELY. IN CASES WHERE THE ASSESSEE DOES NOT WAN T TO PURSUE THE APPEAL, COURT/TRIBUNAL HAVE INHERENT POWER TO DISMI SS THE APPEAL FOR NON PROSECUTION AS HELD BY HONBLE HIGH C OURT OF MUMBAI IN THE CASE OF M/S CHEMIPOL VS. UNION OF IND IA IN EXCISE APPEAL NO. 62 OF 2009. THEREFORE, RESPECTFULLY FOLL OWING THE DECISION OF THE TRIBUNAL IN THE CASE OF MULTIPLAN (IN DIA) LTD., (38 ITD 320) AND MADHYA PRADESH HIGH COURT IN LATE TUKOJI RAO HOLKAR I.T.A. NOS. 744 & 745/HYD/2016 SEW & PRASAD JOINT VENTURE :- 3 -: (223 ITR 480), WE DISMISS THESE APPEALS OF ASSESSEE FOR WANT OF PROSECUTION. 5. IN CASE ASSESSEE SUBMITS A REASONABLE CAUSE FOR NOT APPEARING BEFORE THIS FORUM AND ALSO EXPLAINS WHY F ORM 36 WAS FILED WITH THE SIGNATURE OF AUTHORISED SIGNATORY, THEN B ENCH, IF SATISFIED CAN RECALL THE APPEAL MEMO. OTHERWISE, ASSE SSEE WILL BE FREE TO FILE FRESH APPEALS WITH CONDONATION OF DELAY. WITH THESE REMARKS, BOTH THE APPEAL MEMOS FILED BY ASSESSEE ARE REJECTED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH SEPTEMBER, 2016 SD/- SD/- (P. MADHAVI DEVI) (B.RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMB ER HYDERABAD, DATED 28 TH SEPTEMBER, 2016 TNMM I.T.A. NOS. 744 & 745/HYD/2016 SEW & PRASAD JOINT VENTURE :- 4 -: COPY TO : 1. SEW & PRASAD JOINT VENTURE, 6-3-871, SNEHALATA, GREEN LANDS ROAD, BEGUMPET, HYDERABAD. 2. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-7, HYDERABAD. 3. CIT(APPEALS)-9, HYDERABAD. 4. PR.CIT-6, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.