Sri Jyothi Medical Hall, Hyderabad V. Income Tax Officer, Ward-5(2), Hyderabad

MA 31/Hyd/2018

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 8584 (ITAT-HYDERABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-11-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Assessment Year: 2005-2006
• Appeal Filed On: 22-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 271(1)(c)

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 M.A. No. 31/Hyd/2018 (in ITA No. 811/H/2016 Assessment Year: 2005-06) Jyothi Medical Hall, Hyderabad. PAN – AAWFS0494 G Vs. Income-tax Officer, Ward – 5(2), Hyderabad. (Applicant) (Respondent) ITA No. 811/H/2016 Assessment Year: 2005-06 Jyothi Medical Hall, Hyderabad. PAN – AAWFS0494 G Vs. Income-tax Officer, Ward – 5(2), Hyderabad. (Appellant) (Respondent) Assessee by: Shri Shard Toshniwal for Shri Tej Prakash Toshniwal Revenue by Shri Rohit Mujumdar Date of hearing: 29/10/2021 Date of pronouncement: 15/11/2021 O R D E R PER L.P. SAHU, A.M.: This Miscellaneous Application has been filed by the assessee seeking recall of the order of the Tribunal dated MA No. 31/Hyd/2018 & ITA No. 811/Hyd/2016 M / s S h r i J y o t h i M e d i c a l H a l l ,Hyd. :- 2 -: 31/07/2017 in ITA No. 811/Hyd/2016, under rule 24 of the ITAT rules; wherein the Tribunal dismissed the appeal ex- parte in-limine for non-prosecution. 2. Along with M.A., the assessee filed an affidavit affirming therein that ld. AR of the assessee was sick as on the date of hearing, hence, could not make appearance before this Bench to plead the case on merits. He therefore submitted that non-appearance before the Tribunal is neither willful nor deliberate but bona-fide, beyond the control and requested for recalling the ex-parte order under Rule 24 of ITAT rules, and hearing of the appeal on merit. The learned DR, however, has not objected to recall of the appeal. 3. Considered the rival submissions and perused the material on record. We are of the view that the assessee was prevented by reasonable cause for not appearing before the Tribunal on the date of hearing i.e. on 31/07/2017 and, therefore, relying on the decision of the ITAT, Mumbai Benches in the case of Gateway Terminals India Pvt. Ltd. Vs. DCIT, [2021] 128 Taxmann.com 314, we recall the order dated 31/07/2017 under rule 24 of the ITAT rules. With the consent of both the parties, the appeal was also heard and decided as under: MA No. 31/Hyd/2018 & ITA No. 811/Hyd/2016 M / s S h r i J y o t h i M e d i c a l H a l l ,Hyd. :- 3 -: ITA No. 811/Hyd/2016 4. Briefly the facts of the case are that during the course of survey proceedings, the AO noticed that the assessee maintained books of account in two different packages viz.. SPRO and tally packages. The actual sales were recorded in SPRO package and the details shown to the department were maintained in tally package. The AO noticed the discrepancies for the accounting year 2004-05 relevant to the AY 2005-06 and the same were confirmed by the Managing Partner Sri Ashok Kumar in his statements. Further, he has admitted that there was a suppression of sales on day to day business around 2 to 2.5%. 4.1 The AO, therefore opined that the appellant had concealed the particulars of its income from business by suppressing the sales for the A Y 2005-06 in the return of income filed on 01/11/2005. Since the appellant concealed actual sales ligures, the AO concluded that the appellant concealed the income for the impugned AY for not admitting the correct/true sales made vis-à-vis the income returned and thereby warrants the imposition of penalty u/s 271(1)(c) of the Act. He, therefore, worked out the tax sought to be evaded on the concealed income to Rs. 6,42,060/- u/s 271(1)(c) of the act and levied penalty accordingly. MA No. 31/Hyd/2018 & ITA No. 811/Hyd/2016 M / s S h r i J y o t h i M e d i c a l H a l l ,Hyd. :- 4 -: 5. When the assessee preferred an appeal before the CIT(A), the CIT(A) dismissed the appeal of the assessee by observing that the assessee has not appeared either in person nor any AR on their behalf attended, except filed written submissions on 23/03/2016. 6. Aggrieved by the order of CIT(A), the assessee is in appeal before the ITAT. 7. We have considered the rival submissions and perused the material on record as well as gone through the orders of revenue authorities. Considering the totality of the facts of the case, we are of the view that since the assessee failed to represent its case before the CIT(A), we remit the issue in dispute to the file of the CIT(A) with a direction to decide the appeal on merits after examining the material put-forth by the assessee before him, in accordance with law after providing reasonable opportunity of hearing to the assessee in the matter. The assessee is directed to substantiate its claim by way of documentary evidence at his own risk and responsibilities with three effective opportunities of hearing. Therefore, the grounds raised by the assessee on this issue are allowed for statistical purposes. MA No. 31/Hyd/2018 & ITA No. 811/Hyd/2016 M / s S h r i J y o t h i M e d i c a l H a l l ,Hyd. :- 5 -: 8. In the result, MA filed by the assessee is allowed and the appeal of the assessee is allowed for statistical purposes, in above terms. Pronounced in the open court on 15 th November, 2021. Sd/- Sd/- (S. S. GODARA) (L.P. SAHU) JUDICIAL MEMBER ACCOUNTANT MEMBER Hyderabad, Dated: 15 th November, 2021. kv copy to : 1 M/s Shri Jyothi Medical Hall, C/o Tejprakash Toshniwal, Advocate, 4-1-6/B/4, Ramkote, Hyderabad. 2 ITO, Ward – 5(2), Hyderabad. 4 CIT(A) - 4, Hyderabad 5 Pr. CIT - 4, Hyderabad. 6 ITAT, DR, Hyderabad 7 Guard File.