YOJAKA INDIA PVT LTD, MANGALURU V. ASST COMMISSIONER OF INCOME TAX CIRCLE-1(1) AND TPS, MANGALURU

ITA 924/BANG/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 7010 (ITAT-BANGALORE)
• Duration Of Justice: 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-05-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 21-05-2024
• Assessment Year: 2013-2014
• Appeal Filed On: 20-11-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rectification of order; Set aside
• Section: 154; 143(3); 80IA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH : BANGALORE BEFORE SMT. BEENA PILLAI, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER ITA No.924/Bang/2023 Assessment year : 2013-14 Yojaka India Pvt. Ltd., 2 nd Floor, ABCO Trade Centre, Kottara Chowki, Mangaluru – 575 006. PAN : AAACY 1852D Vs. The Assistant Commissioner of Income Tax & TPS, Circle 1(1), Mangaluru. APPELLANT RESPONDENT Appellant by : Smt. M.R. Vanaja, Advocate Respondent by : Smt. Shamala, D.D., Addl.CIT(DR)(ITAT), Bengaluru. Date of hearing : 22.05.2024 Date of Pronouncement : 29.05.2024 O R D E R Per Laxmi Prasad Sahu, Accountant Member This appeal is filed by the assessee against the DIN & order dated 31.10.2022 of the CIT(Appeals), National Faceless Appeal Centre, Delhi [NFAC], for the AY 2013-14 on the following grounds:- “(1) The Learned AO was not right in initiating the proceedings u/s 154 of the Act for the Asst- Year 2013-14 u/s 154 of the act is erroneous, arbitrary, and opposed to the facts and law thus liable the order dated 29.03.2021 to be set aside. ITA No.924/Bang/2023 Page 2 of 5 (2) The Learned AO failed to observe the disallowances of the assesses claim u/s 154 of the act is not a mistake apparent on the face of the record as section 80IA of the Act is a code itself requires the application of judicial power vested with the officers to allow the exemption or not in a given case. (3) The Appellant submits moreover the claiming of exemption u/s 80IA for the previous year's 2010-11 and 2011-12 are pending consideration before the High Court. (4) The demand raised is time-barred and liable to be quashed (5) For these and other grounds that may be urged at the time of hearing of the Appeal, the assessee prays the order passed by the AO may be set aside and allow the appeal.” 2. At the outset, as per the Registry the appeal is delayed by 906 days. The assessee has filed affidavit dated 21.05.2024 for condonation of delay. The ld. AR submitted that the appeal was filed before CIT(Appeals) on 30.03.2021 by CA, K.S. Kamath and thereafter he relinquished from the work of the company. A new auditor was appointed in place of CA K.S. Kamath on 17.09.2021. The CIT(Appeals) order dated 31.10.2022 was received by the assessee only on 31.10.2023 and accordingly the delay is only 394 days. He submitted that date of service of the said order is wrongly mentioned in Form 36 and filed a revised Form 36 indicating the correct date of order passed by the CIT(Appeals) could not be tracked due to change of auditor, financial difficulties, recovery proceedings and that the delay was bonafide and not intentional. He relied on the Supreme Court judgment in the case of Collector, Land Acquisition Vs. MST. Katiji and Others (1987) 167 ITR 471(SC) and requested for condonation of delay. ITA No.924/Bang/2023 Page 3 of 5 3. After hearing both the parties, it is observed that there are sufficient reasons for the delay and following the judgment of the Hon'ble Apex Court in the case of Collector, Land Acquisition Vs. MST. Katiji (supra), delay in filing the appeal before the Tribunal is condoned. 4. The brief facts of the case are that the AO completed assessment u/s. 143(3) of the Act on 08.03.2016. The AO issued rectification order dated 29.03.2021 observing that MAT credit for AY 2012-13 was allowed and later it came to notice that the assessment for AY 2012-13 was completed u/s. 143(3) determining total income at Rs.7,51,81,600 by disallowing claim of deduction u/s. 80IA and tax was payable for AY 2012-13 under normal provisions and not under MAT. Hence no MAT credit was available to be set off in AY 2013-14. The AO accordingly issued notice to withdraw the MAT credit of Rs.71,35,925 allowed in the assessment order for AY 2013-14. The AO noted that there was no response to the notice u/s. 154 and the assessee has also not filed audit report in Form 29B. The AO withdrew MAT credit of Rs.71,35,925 and passed order u/s. 154 of the Act. 5. Aggrieved, the assessee filed appeal before the CIT(Appeals). The CIT(A) issued notice of hearing on 18.10.2022 and assessee submitted that it was busy with finalisation of income tax return and compliance under MCA portal and requested time till first week of December, 2022. The CIT(A) observed that despite considerable time ITA No.924/Bang/2023 Page 4 of 5 for filing response, the assessee sought time on one or other pretext and not furnished the details. The CIT(Appeals) dismissed the appeal ex- parte. 6. The ld. AR submitted that the CIT(Appeals) has not considered the adjournment petition of the assessee and decided the issue ex-parte without going into the merits of the case. She submitted that the issue for AY 2010-11 & 2011-12 are pending consideration before the Hon’ble Karnataka High Court and the outcome will have a bearing on the allowability of MAT credit for the impugned assessment year 2013-14. Accordingly she requested for one more opportunity before the CIT(Appeals) to substantiate the case of assessee. 7. The ld. DR relied on the order of lower authorities. 8. Considering the rival submissions, we note that the CIT(Appeals) has not considered the adjournment petition field by the assessee which is incorporated in his order and passed ex-parte order without going into the merits. Considering the facts of the case and in the interest of justice, we remit the appeal to the CIT(Appeals) for fresh consideration and decision as per law after reasonable opportunity of being heard. The assessee is directed to intimate the correct email id, telephone/mobile no. and communication address to the departmental authorities and not seek unnecessary adjournment for early disposal of the case. ITA No.924/Bang/2023 Page 5 of 5 9. In the result, the appeal by the assessee is allowed for statistical purposes. Pronounced in the open court on this 29 th day of May, 2024. Sd/- Sd/- ( BEENA PILLAI ) (LAXMI PRASAD SAHU ) JUDICIAL MEMBER ACCOUNTANT MEMBER Bangalore, Dated, the 29 th May, 2024. / Desai S Murthy / Copy to: 1. Appellant 2. Respondent 3. Pr.CIT 4. CIT(A) 5. DR, ITAT, Bangalore. By order Assistant Registrar ITAT, Bangalore.