Boulder Hills Leisure Private Limited, Hyd, Hyderabad V. DCIT, Circle-1(3), (Present DCIT, Circle-1(2), Hyd, Hyderabad

MA 64/HYD/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5203 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 29-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A SITARAMA RAO
• Assessee Lawyers: A V RAGHURAM
• Keywords: Question of law

Judgement Text

MA NOS 64 AND 65 OF 2016 BOULDER HILLS LEISURE P LT D HYDERABAD PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S.RIFAUR RAHMAN, ACCOUNTANT MEMBER M.A. NOS.64 & 65/HYD/2016 (ARISING OUT OF ITA NO.1233/HYD/2014 & 1234/HYD/2014) (ASSESSMENT YEARS: 2007-08 & 2008-09) M/S BOULDER HILLS LEISURE PRIVATE LTD HYDERABAD PAN: AACCB 5076 C VS DCIT, CIRCLE 1(3) HYDERABAD FOR ASSESSEE : SHRI A.V. RAGHURAM FOR REVENUE : SHRI A. SITARAMA RAO, DR O R D E R PER SMT. P. MADHAVI DEVI, J.M. THESE MISCELLANEOUS APPLICATIONS ARE FILED BY THE ASSESSEE FOR RECALL OF THE ORDERS OF THE TRIBUNAL I N ITA NOS.1233 & 1234/HYD/2014 RESPECTIVELY. THE APPEALS OF THE ASSE SSEE, FOR THE A.YS 2007-08 & 2008-09 RESPECTIVELY, WERE DISPOSED O F BY THE TRIBUNAL IN LIMINI ON THE GROUND THAT THE ASSESSEE HAS NOT RECTIFIED THE DEFECTS RAISED IN THE DEFECT MEMO WIT HIN THE STIPULATED TIME AND INSPITE OF SUBSEQUENT REMINDERS ON FURTHER DATES OF HEARING OF THE APPEAL. 2. THE ASSESSEE HAS RAISED THE FOLLOWING CONTENTION S IN THE M.A.:- DATE OF HEARING : 25.11.2016 DATE OF PRONOUN CEMENT : 17 .01.2017 MA NOS 64 AND 65 OF 2016 BOULDER HILLS LEISURE P LT D HYDERABAD PAGE 2 OF 4 3. THE APPLICANT AT THE THRESHOLD SUBMITS THAT BOTH THE APPEALS OF THE APPLICANT FOR AY 2007- 08 AND AY 2008-09 WERE ACTUALLY ADJOURNED TO 01.03.2016 ALONG WITH OTHER APPEALS OF THE COUNSEL VIZ.. DR.BALAJI PALLEWAR AND M/S.VIJAYA EDUCATIONAL ACADEMY, WHICH FACT WOULD BE EVIDENT FROM THE CAUSE LIST OF HON'BLE BENCH FOR 01.12.2015. THE DATE THAT WAS ANNOUNCED IN THE OPEN COURT WAS 01.03.2016 AND ACCORDINGLY, THE APPEALS OF THE APPLICANT AND THE OTHER TWO APPEALS MENTIONED ABOVE WERE NOTED BY THE COUNSEL (A.V.RAGHU RAM, ADVOCATE) AS 01.03.2016. THE COUNSEL ACCORDINGLY INSTRUCTED THE APPLICANT TO SEND THE VAKALATNAMAS FOR BOTH THE APPEALS AND FURTHER ENQUIRED ABOUT THE NOTIFICATION OF ANY DEFECTS BY THE REGISTRY. IN RESPECT OF THE VAKALATS, THE APPLICANT HAS ASSURED THE COUNSEL THAT THE SAME WILL BE SENT AND IN SO FAR AS THE DEFECTS POINTED OUT BY THE REGISTRY, THE APPLICANT HAD INFORMED THE COUNSEL THAT THEY WERE RECTIFIED BY FILING FRESH FORM NO. 36 VIDE LETTER DATED 30.12.2014 AND THAT THERE WAS NO FURTHER NOTIFICATION WITH RESPECT TO ANY OTHER DEFECTS. IT IS SUBMITTED HERE THAT THE COUNSEL FOR THE APPLICANT WAS UNDER THE BONA FIDE IMPRESSION THAT THE DEFECTS WERE ALREADY RECTIFIED BY THE APPLICANT WHICH PROBABLY WERE NOT PLACED FOR CONSIDERATION OF THE HON'BLE TRIBUNAL. THE COUNSEL WAS OF THE BONA FIDE IMPRESSION THAT ONLY FURTHER DEFECT IS WITH RESPECT TO POWER OF ATTORNEYS FOR WHICH THE COUNSEL HAD ALREADY MADE ARRANGEMENTS. 4. HOWEVER, THE APPEALS GOT LISTED ON 01.02.2016 AND THE HON'BLE BENCH FOUND THAT THE DIRECTIONS OF THE HON'BLE BENCH WERE NOT COMPLIED WITH AND WAS PLEASED TO DISMISS THE APPEALS. 5. IT IS SUBMITTED THAT THE OBSERVATION OF THE HON'BLE BENCH IN ITS ORDER DATED 01.02.2016 MAY NOT BE CORRECT IN AS MUCH THE APPLICANT MA NOS 64 AND 65 OF 2016 BOULDER HILLS LEISURE P LT D HYDERABAD PAGE 3 OF 4 HAS GREAT RESPECT TOWARDS LAW AND THE DIRECTIONS OF THE HON'BLE TRIBUNAL. IT IS SUBMITTED THAT THE MISTAKE IF ANY IS ONLY ON ACCOUNT OF THE DATE OF HEARING BEING NOTIFIED AND RECORDED BY THE COUNSEL. THE HON'BLE TRIBUNAL MAY KINDLY APPRECIATE THAT IN SO FAR AS THE MERITS OF THE MATTER IS CONCERNED, THE APPLICANT HAD ALREADY FILED PAPER BOOKS AND REPORTED READY FOR THE APPEALS ON 18.08.2015. THEREFORE, IT IS SUBMITTED THAT THERE CANNOT BE A PRESUMPTION THAT THE APPLICANT HAS NOT SHOWN INTEREST IN THE PURSUING THE APPEAL BUT FOR THE INADVERTENT MISTAKES NOTED ABOVE. FURTHER, THE DEFECT NOTICED IN THE REVISED FORM NO. 36 FILED ALONG WITH LETTER DATED 30.12.2014 WAS NOT NOTIFIED TO THE APPLICANT. 6. IT IS SUBMITTED THAT THE APPLICANT AFTER CONDUCTING THE INSPECTION OF RECORDS THROUGH ITS COUNSEL HAS NOTICED THAT THE REVISED FORM NO. 36 FILED VIDE LETTER DATED 30.12.2014 IS NOT SIGNED BY MANAGING DIRECTOR AND HENCE DEFECTIVE. THE APPLICATION IS THEREFORE SUBMITTING FRESH/REVISED/CORRECTED FORM 36 ALONG WITH GROUNDS OF APPEAL DULY SINGED BY THE DIRECTOR OF THE APPLICANT. 7. IT IS SUBMITTED THAT THE INADVERTENT MISTAKE THAT HAD HAPPENED IS BONA FIDE AND IS NOT WILLFUL. IT IS SUBMITTED THAT THE ISSUES IN THE APPEAL INVOLVE COMPLEX FACTS AND SUBSTANTIAL QUESTION OF LAW WHICH HAS HUGE FINANCIAL IMPLICATION IN SO FAR AS THE APPLICANT IS CONCERNED. IF THE HON'BLE TRIBUNAL IS NOT PLEASED TO RECALL ITS ORDER DATED 01.02.2016 IN ITA NO.1233/HYD/2014, THE APPLICANT WILL BE PUT TO GREAT PREJUDICE AND LOSS WHICH CANNOT BE COMPENSATED BY ANY OTHER MEANS. IN VIEW OF THE ABOVE, IT IS PRAYED THAT THE HON'BLE TRIBUNAL MAY BE PLEASED TO RECALL ITS ORDER DATED 01.02.2016 DISMISSING THE APPEAL OF THE APPLICANT IN LIMINI IN ITA MA NOS 64 AND 65 OF 2016 BOULDER HILLS LEISURE P LT D HYDERABAD PAGE 4 OF 4 NO.1233/HYD/2014, ADMIT THE SAME AND HEAR THE SAME ON MERITS AND PASS SUCH OTHER ORDER(S) AS THE HON'BLE TRIBUNAL DEEMS FIT AND PROPER IN THE INTEREST OF JUSTICE. 3 WE HAVE VERIFIED THE APPEAL RECORDS AND FIND THE ASSESSEES CONTENTIONS TO BE CORRECT. IN VIEW OF TH E SAME, WE ARE INCLINED TO RECALL THE ORDER OF THE TRIBUNAL AND TH E REGISTRY IS DIRECTED TO FIX THE APPEALS FOR HEARING IN REGULAR COURSE AFTER GIVING NOTICE TO THE RESPECTIVE PARTIES. 4. IN THE RESULT, MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH JANUARY, 2017. SD SD/- (S.RIFAUR RAHMAN) ACCOUNTANT MEMBER (P. MADHAVI DEVI) JUDICIAL MEMBER HYDERABAD, DATED 17 TH JANUARY, 2017. VINODAN/SPS COPY TO: 1 M/S. BOULDER HILLS LEISURE P LTD, BOULDER HILLS G OLD & COUNTRY CLUB, OPP: ISB-INDIAN SCHOOL BUSINESS, MANIKONDA(V) GACHIBOWLI HYDERABAD 500032 2 THE DCIT, CIRCLE 1(3) AAYAKAR BHAVAN, BASHEERBAGH , HYDERABAD- 500004 3 CIT (A)-II HYDERABAD 4 CIT I HYDERABAD 5 THE DR, ITAT HYDERABAD 6 GUARD FILE