M/s Green Home Estates & Realtors Private Limited, Hyderabad V. Dy.CIT, Central Circle-2(2), Hyderabad

ITA 786/HYD/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 82252 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 01-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P SOMASEKHAR REDDY
• Assessee Lawyers: K A SAI PRASAD
• Keywords: Opportunity of being heard; Assessment record
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER SL.NO. ITA NO. AY APPELLANT RESPONDENT 1 786/H/14 2006-07 M/S GREEN HOME ESTATES & REALTORS PVT. LTD., HYDERABAD. PAN- AABCG5973E THE DY. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE 2(2), HYDERABAD. ASSESSEE BY SHRI K.A. SAI PRASAD REVENUE BY SHRI P. SOMA SEKHAR REDDY DATE OF HEARING 20-08-2014 DATE OF PRONOUNCEMENT 27-08-2014 O R D E R PER P.M. JAGTAP, A.M.: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LEARNED CIT(A)-III, HYDERABAD, DATED 10 TH DECEMBER, 2013 FOR THE ASSESSMENT YEAR 2006-07, WHEREBY HE DISMISSED THE A PPEAL FILED BY THE ASSESSEE TREATING THE SAME AS BARRED BY LIMITAT ION. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WH ICH IS ENGAGED IN THE REAL ESTATE BUSINESS. RETURN OF INCO ME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 01/09/2006 D ECLARING TOTAL INCOME OF RS. 42,75,385/-. IN THE ASSESSMENT ORIGIN ALLY COMPLETED U/S 143(3) VIDE ORDER DATED 08/02/2007, THE INCOME DECL ARED IN THE RETURN WAS ACCEPTED BY THE AO. SUBSEQUENTLY, THE SAID ASSE SSMENT WAS REOPENED AND IN THE REASSESSMENT COMPLETED VIDE ORD ER DATED 29/11/2011 U/S 143(3) R.W.S. 147 OF THE ACT, THE TO TAL INCOME OF THE ASSESSEE WAS COMPUTED BY THE AO AT RS. 93,55,990/- AFTER MAKING 2 ITA NO. 786/HYD/2014 M/S GREEN HOME ESTATES & REALTORS P. LTD. TWO ADDITIONS OF RS. 38,78,400/- AND RS. 12,02,209/ - ON ACCOUNT OF DIFFERENCE ON ACCOUNT OF SALE OF LAND AND DISALLOWA NCE U/S 40(A)(IA) RESPECTIVELY. 3. AGAINST THE ORDER PASSED BY THE AO U/S 143(3) R. W.S. 147, APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LEA RNED CIT(A), WHO DISMISSED THE SAME AT THE VERY THRESHOLD TREATING T HE SAME AS BARRED BY LIMITATION AFTER RECORDING FOLLOWING OBSERVATION S IN PARAGRAPHS 4 TO 6 OF HIS APPELLATE ORDER: 4. IN THIS CASE THE ASSESSMENT ORDER WAS PASSED ON 29/11/2011. IT WAS DISPATCHED TO THE APPELLANT ON T HE SAME DAY. THIS IS EVIDENT FROM THE 1 ST PAGE OF THE ORDER AS WELL AS FROM THE DEMAND NOTICE. IT IS ALSO CLEAR FROM THE ASSESSMENT RECORD. 5. HOWEVER IN THE APPEAL FROM NUMBER 35 THE APPELLA NT HAS STATED THAT THE ORDER WAS RECEIVED ON 16/12/2011 I. E. AFTER 18 DAYS AND THAT TOO WITHIN THE SAME CITY. THE APPEAL WAS FILED ON 12/01/2012. IF WE LOOK AT THE RELEVANT COLUMN IN FO RM NO. 16, IT BECOMES CLEAR THAT THE APPEAL WAS LATE AND THE DATE OF RECEIPT OF ASSESSMENT ORDER HAS BEEN MANIPULATED MANUALLY. THERE IS A WHITE FLUID PLACED ON THE DATE OF RECEIPT AND THE N UMBERS 16 HAVE BEEN SUBSTITUTED MANUALLY. IF WE LOOK AT THE O RIGINAL FORM IN LIGHT, IT WILL BE VERY CLEAR THAT THE ASSESSMENT ORDER WAS RECEIVED BY THE APPELLANT ON 01/11/2011 AS THIS IS THE ORIGINAL DATE CLEARLY VISIBLE FROM THROUGH THE WHITE INK COR RECTION FLUID. THIS ALSO CORRESPONDS TO THE DATE OF DISPATCH I.E. 29/11/2011. THE ORDER WAS DELIVERED LOCALLY WITHIN TWO DAYS AS HAPPENS NORMALLY. ABSOLUTELY NO EVIDENCE HAS BEEN PROVIDED BY THE APPELLANT WHICH WOULD INDICATE THAT THE ASSESSMENT ORDER WAS RECEIVED MORE THAN 18 DAYS AFTER IT WAS DISPATCHED. IT IS VERY CLEAR THAT THE APPELLANT HAS MANIPULATED THE DATE I N FORM NUMBER 35 ONLY TO FACILITATE AND TO MAKE IT APPEAR THAT THE APPEAL IS IN TIME. NO APPLICATION FOR CONDONATION O F DELAY IN FILING HAS BEEN GIVEN BY THE APPELLANT. 6. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, I HAVE NO OPTION BUT TO HOLD THAT THE APPEAL IS BEYOND TIME A ND THE HUGE DELAY IN FILING OF THIS APPEAL CANNOT BE CONDONED. 4. AGGRIEVED BY THE ORDER PASSED BY THE LEARNED CIT (A), ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL WITH A DELAY OF 53 DAYS. 3 ITA NO. 786/HYD/2014 M/S GREEN HOME ESTATES & REALTORS P. LTD. 5. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ORDER PASSED BY THE AO U/S 143(3) R.W.S. 147 ON 29/11/201 1 WAS ACTUALLY RECEIVED BY THE ASSESSEE ON 16/12/2011 AND, THEREFO RE, THERE WAS ACTUALLY NO DELAY ON THE PART OF THE ASSESSEE IN FI LING THE APPEAL BEFORE THE LEARNED CIT(A). IN THIS REGARD, HE HAS P RODUCED A COPY OF ACKNOWLEDGMENT SLIP DULY CERTIFIED BY THE CONCERNED AO TO SHOW THAT THE SAID ORDER WAS ACTUALLY SERVED ON THE ASSESSEE ON 16/12/2011. HE CONTENDED THAT THERE WAS NO OPPORTUNITY GIVEN BY THE LEARNED CIT(A) TO THE ASSESSEE TO ESTABLISH THE ACTUAL DATE OF RECEIPT OF THE ORDER BEFORE DISMISSING THE APPEAL OF THE ASSESSEE BY HOLDING THE SAME TO BE BARRED BY LIMITATION. HE SUBMITTED THAT THE ASSESSEE AFTER THE RECEIPT OF THE IMPUGNED ORDER OF THE LEARNED CI T(A) OBTAINED THE CERTIFIED COPY OF THE ACKNOWLEDGMENT TO ESTABLISH T HAT THE ORDER U/S 143(3) R.W.S. 147 WAS ACTUALLY RECEIVED BY HIM ON 1 6/12/2011 AND ALSO FILED APPLICATION DATED 14/02/14 FOR RECTIFICA TION SEEKING RECALL OF THE IMPUGNED ORDER OF THE LEARNED CIT(A) ON THE BAS IS OF THE SAID DOCUMENTARY EVIDENCE. HE CONTENDED THAT THE LEARNED CIT(A), HOWEVER, DID NOT TAKE COGNIZANCE OF THE SAID APPLIC ATION FOR RECTIFICATION AND AFTER WAITING FOR A REASONABLE PE RIOD OF ABOUT THREE MONTHS, ASSESSEE FILED ITS APPEAL BEFORE THE TRIBUN AL, WHICH RESULTED IN DELAY OF 53 DAYS. 6. THE LEARNED DR, ON THE OTHER HAND, RELIED ON THE IMPUGNED ORDER OF THE LEARNED CIT(A) IN SUPPORT OF REVENUES CASE AND LEFT THE MATER FOR CONSIDERATION AND DECISION OF THE TRIBUNA L. 7. AFTER CONSIDERING RIVAL SUBMISSIONS AND PERUSING THE RELEVANT MATERIAL ON RECORD, WE FIND THAT APPLICATION FOR RE CTIFICATION WAS FILED BY THE ASSESSEE BEFORE THE LEARNED CIT(A) ON 14/02/ 14 ON THE BASIS OF CERTIFIED COPY OF THE ACKNOWLEDGMENT OBTAINED FR OM THE AO SHOWING THE DATE OF RECEIPT OF ORDER AS 16/12/11 WI TH A HOPE THAT THE LEARNED CIT(A) ON THE BASIS OF THE SAID DOCUMENTARY EVIDENCE WOULD RECALL ITS ORDER. AS SUBMITTED BY THE LEARNED COUN SEL FOR THE 4 ITA NO. 786/HYD/2014 M/S GREEN HOME ESTATES & REALTORS P. LTD. ASSESSEE, THE LEARNED CIT(A), HOWEVER, DID NOT TAKE ANY COGNIZANCE OF THE SAID APPLICATION AND AFTER WAITING FOR A RE ASONABLE PERIOD OF LESS THAN THREE MONTHS, THE ASSESSEE PURSUED THE OT HER REMEDY AVAILABLE TO IT BY FILING THIS APPEAL BEFORE THE TR IBUNAL. HAVING REGARD TO ALL THESE FACTS BORNE OUT FROM THE RECORD, WE AR E OF THE VIEW THAT THERE WAS A SUFFICIENT CAUSE FOR THE DELAY IN FILIN G THIS APPEAL BY THE ASSESSEE BEFORE THE TRIBUNAL AND THE SAID DELAY OF 53 DAYS DESERVES TO BE CONDONED. ACCORDINGLY, WE CONDONE THE SAID DE LAY. 8. AS REGARDS THE DELAY ON THE PART OF THE ASSESSEE IN FILING ITS APPEAL BEFORE THE LEARNED CIT(A) AS ALLEGED BY THE LATTER IN HIS IMPUGNED ORDER, WE FIND FROM THE PERUSAL OF THE CER TIFIED COPY OF THE RELEVANT ACKNOWLEDGMENT ISSUED BY THE CONCERNED AO THAT THE ORDER PASSED U/S 143(3) R.W.S. 147 ON 29/11/2011 WAS ACTU ALLY SERVED ON THE ASSESSEE ON 16/12/2011 AND SINCE THE APPEAL AGA INST THE SAID ORDER WAS FILED BY THE ASSESSEE BEFORE THE LEARNED CIT(A) ON 12/01/2012 I.E. WITHIN THE TIME LIMIT PRESCRIBED UN DER THE ACT, THERE WAS NO DELAY ON THE PART OF THE ASSESSEE IN FILING THE SAID APPEAL BEFORE THE LEARNED CIT(A). WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER OF THE LEARNED CIT(A) DISMISSING THE SAID APP EAL FILED BY THE ASSESSEE TREATING THE SAME AS BARRED BY LIMITATION AND REMIT THE MATTER BACK TO HIM FOR DECIDING THE APPEAL OF THE A SSESSEE ON MERIT IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE PROPE R AND SUFFICIENT OPPORTUNITY OF BEING HEARD. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 27 TH AUGUST, 2014. SD/- SD/- (ASHA VIJAYARAGHAVAN) (P.M . JAGTAP) JUDICIAL MEMBER A CCOUNTANT MEMBER HYDERABAD, DATED: 27 TH AUGUST, 2014 5 ITA NO. 786/HYD/2014 M/S GREEN HOME ESTATES & REALTORS P. LTD. KV COPY TO:- 1. M/S GREEN HOME ESTATES & REALTORS PVT. LTD., C/ O CH. PARTHASARATHY & CO., 1-1-298/2/B/3, 1 ST FLOOR, SOWBHAGYA AVENUE, ST. NO. 1, ASHOKNAGAR, HYDERABAD 500 020. 2. DCIT, CENTRAL CIRCLE 2(2), HYDERABAD 3. CIT(A)-III, HYDERABAD. 4. CIT-II, HYDERABAD 5. DR, ITAT, HYDERABAD