Parbhat Hotels Pvt. Ltd.,, Panchkula v. ACIT,, Panchkula

ITA 127/CHANDI/2010 | 2005-2006
Pronouncement Date: 31-01-2011 | Result: Dismissed

Appeal Details

RSA Number 12721514 RSA 2010
Assessee PAN AABCP6437C
Bench Chandigarh
Appeal Number ITA 127/CHANDI/2010
Duration Of Justice 11 month(s) 28 day(s)
Appellant Parbhat Hotels Pvt. Ltd.,, Panchkula
Respondent ACIT,, Panchkula
Appeal Type Income Tax Appeal
Pronouncement Date 31-01-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 31-01-2011
Date Of Final Hearing 31-01-2011
Next Hearing Date 31-01-2011
Assessment Year 2005-2006
Appeal Filed On 02-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B CHANDIGARH BEFORE SHRI D.K.SRIVASTAVA ACCOUNTANT MEMBER AND MS SUSHMA CHOWLA JUDICIAL MEMBER ITA NO. 127/CHD/2010 ASSESSMENT YEAR: 2005-06 M/S PARBHAT HOTELS PVT LTD. VS. THE ACIT PANCHKULA PANCHKULA PAN NO. AABCP6437C (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DEEPAK AGGARWAL RESPONDENT BY: SMT. JAISHREE SHARMA ORDER PER SUSHMA CHOWLA JM THE APPEAL BY THE ASSESSEE IS AGAINST THE ORDER OF CIT(A) PANCHKULA DATED 20.11.2009 RELATING TO ASSESSMENT Y EAR 2005-06 AGAINST THE ORDER PASSED UNDER SECTION 143(3) OF THE I.T. ACT 1961. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. THAT THE LD. CIT(A) IS NOT JUSTIFIED IN REJECTING T HE APPLICATION FOR CONDITION OF DELAY WHEREAS AS PER T HE ASSESSEE THE DELAY IN FILING OF APPEAL BEFORE THE L D. CIT(A) WAS BONAFIDE. 2. THAT THE LD. CIT(A) IS NOT JUSTIFIED IN UPHOLDING T HE DISALLOWANCE OF DEDUCTION CLAIMED BY THE ASSESSEE U /S 80IB ON THE GROUND THAT APPROVAL CONVEYED BY THE DIRECTORATE GENERAL IS DATED 24.12.2008 AND IS PROSPECTIVE IN NATURE IN ITS APPLICATION WHEREAS AS PER THE ASSESSEE APPROVAL WAS GRANTED BY THE APPROVAL O N DATED 21.8.2001 WHICH WAS CLARIFIED VIDE LETTER DAT ED 24.12.2008. 3. THE FIRST ISSUE RAISED BY THE ASSESSEE IN THE PR ESENT APPEAL IS AGAINST THE REJECTION OF THE APPLICATION FOR CONDON ATION OF DELAY BY THE 2 CIT(A). THE ISSUE VIDE GROUND NO.2 RAISED BY ASSES SEE IS AGAINST THE DISALLOWANCE OF DEDUCTION CLAIMED U/S 80IB OF THE A CT. 4. THE PRESENT APPEAL WAS FILED BY THE ASSESSEE AGA INST THE ORDER OF CIT(A) AND A DEFICIENCY NOTICE WAS ISSUED TO THE A SSESSEE FOR SHORT PAYMENT OF THE TRIBUNAL FEE. THE LD. AR FOR THE AS SESSEE FURNISHED ON RECORD THE ORDER PASSED U/S 154 OF THE INCOME TAX A CT DATED 31.3.2008 UNDER WHICH THE ASSESSED INCOME OF RS. 9 38 289/- W AS ADJUSTED AGAINST THE BROUGHT FORWARD DEPRECIATION LOSS OF RS. 42 06 076/- AND THE BALANCE DEPRECIATION LOSS TO BE CARRY FORWARD WAS DETERMINE D AT RS. 32 67 787/-. THE PLEA OF THE LD. AR FOR THE ASSESSEE WAS THAT SI NCE THE INCOME OF THE ASSESSEE AFTER ADJUSTMENT OF BROUGHT FORWARD DEPREC IATION WAS DETERMINED AT NIL THE ASSESSEE HAD NOT DEFAULTED IN THE PAYME NT OF THE REQUISITE TRIBUNAL FEE WHICH WAS RS. 500/- IN THE CASE. WE FIND NO INFIRMITY IN THE SAID PAYMENT OF THE TRIBUNAL FEE OF RS. 500/- AND P ROCEED TO HEAR THE APPEAL. 5. THE ISSUE RAISED BY THE ASSESSEE VIDE GROUND NO. 1 IS REJECTION OF APPLICATION FOR CONDONATION OF DELAY BY THE CIT(A). 6. THE APPEAL WAS FILED BEFORE THE CIT(A) AFTER A D ELAY OF 408 DAYS. THE ASSESSMENT IN THE CASE WAS FINALIZED ON 23.11. 2007. THE APPEAL BEFORE THE CIT(A) WAS FILED ON 5.1.2009. AN APPLIC ATION WAS MOVED FOR THE CONDONATION OF DELAY IN FURNISHING THE APPEAL B EFORE THE CIT(A). IN THE SAID APPLICATION IT WAS PRAYED BY THE ASSESSEE THAT THE DEDUCTION CLAIMED U/S 80IB WAS REJECTED ON THE GROUND THAT TH E REQUISITE APPROVAL WAS NOT RECEIVED BY THE ASSESSEE FROM THE DIRECTO RATE GENERAL OF TOURISM GOVERNMENT OF INDIA. THE ASSESSEE AFTER P ASSING OF THE ASSESSMENT ORDER TOOK UP THE ISSUE AND THE LETTER O F APPROVAL DATED 3 24.12.2008 WAS ISSUED TO THE ASSESSEE AS PER WHICH THE APPROVAL WAS GRANTED W.E.F. 21.8.2001. THE ASSESSEE CLAIMS THAT ITS COUNSEL OPINED AS THE TAX EFFECT IN THE CASE WAS NIL AND TO AVOID PRO TRACTED LITIGATION NO APPEAL WAS FILED IN TIME. HOWEVER THE APPEAL WAS FILED BY THE ASSESSEE AS IT DID NOT WANT TO LOOSE THE STATUTORY BENEFIT A LLOWABLE UNDER THE LAW. THE SAID APPLICATION OF THE ASSESSEE WAS REJECTED B Y THE CIT(A) OBSERVING THAT THERE WAS NO REASONABLE CAUSE WITH THE ASSESSE E FOR FILING THE APPEAL LATE. IT WAS FURTHER OBSERVED BY CIT(A) THAT THE R ECEIPT OF APPROVAL FROM THE MINISTRY OF TOURISM WAS NO GROUND FOR NOT FILIN G THE APPEAL IN TIME AND ACCORDINGLY THE APPEAL WAS NOT ADMITTED. 7. THE LD. AR FOR THE ASSESSEE STRESSED HIS APPLICA TION FOR CONDONATION OF DELAY MOVED BEFORE THE CIT(A). HOWE VER THE LD. AR FAILED TO BRING ON RECORD ANY EVIDENCE TO PROVE HIS CASE. THE LD. AR FAILED TO FILE THE COPY OF THE ALLEGED ADVICE GIVEN BY THE COUNSEL AGAINST FILING THE APPEAL BEFORE THE CIT(A). FURTHER WE F IND THAT THE RECTIFICATION ORDER U/S 154 OF THE INCOME TAX ACT WAS PASSED IN T HE CASE ON 31.3.2008 UNDER WHICH IT WAS ALLOWED THE BENEFIT OF SET OFF A ND CARRY FORWARD OF LOSSES AND EVEN THEREAFTER THE APPEAL BEFORE THE CI T(A) WAS FILED AS LATE AS 5.1.2009. THE ASSESSEE HAS FAILED TO JUSTIFIAB LY EXPLAIN THE DELAY IN NON FURNISHING OF THE APPEAL IN TIME BEFORE THE CIT (A). IN THE TOTALITY OF FACTS AND CIRCUMSTANCES WE FIND NO MERIT IN THE CO NDONATION APPLICATION MOVED BY THE ASSESSEE FOR FURNISHING THE APPEAL BEL ATEDLY BEFORE THE CIT(A). CONFIRMING THE ORDER OF CIT(A) WE FIND TH AT THE ASSESSEE HAS FAILED TO ESTABLISH THE REASONABLENESS OF DELAY IN FURNISHING THE APPEAL BELATEDLY BEFORE THE CIT(A). 8. COMING TO THE MERITS OF ADDITION MADE IN THE CA SE THE GRIEVANCE OF THE ASSESSEE IN THE PRESENT APPEAL IS IN RESPECT OF THE NON ALLOWANCE OF 4 DEDUCTION U/S 80IB OF THE ACT. THE ASSESSEE DURIN G THE HEARING OF THE APPEAL WAS CONFRONTED WITH THE PROVISIONS OF SECTIO N 80A OF THE INCOME TAX ACT VIS-A-VIS INCOME ASSESSED AT NIL IN THE HAN DS OF THE ASSESSEE. THE LD. AR COULD NOT BRING TO OUR NOTICE ANY AUTHORITY AS TO HOW DEDUCTION U/S 80IB OF THE ACT COULD BE ADMISSIBLE IF THE ASSE SSABLE INCOME WAS NIL IN TERMS OF SECTION 80A OF THE INCOME TAX ACT. 9. PERUSAL OF THE ORDER PASSED BY THE CIT(A) SHOWS THAT HE HAD FIRST REJECTED THE APPLICATION FOR CONDONATION OF DELAY A ND THEREAFTER PROCEEDED TO DISPOSE OF THE MATTER ON MERIT. WE HAVE ALREADY UPHELD THE ORDER OF CIT(A) IN NON CONDONATION OF DELAY IN THE MATTER OF FILING APPEAL BEFORE HIM. IN THIS VIEW OF THE MATTER WE FURTHER HOLD TH AT HE WAS NOT JUSTIFIED IN ADJUDICATING UPON THE ISSUE ON MERIT. RESULTANT LY HIS DECISION ON MERIT AS CONTAINED IN PARA 6 OF HIS ORDER IS VACATE D. THE GROUND NO. 2 TAKEN BY THE ASSESSEE IS DISMISSED. 10. IN THE RESULT APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF JANUARY 2011. SD/- SD/- (D.K.SRIVASTAVA) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 31 ST JANUARY 2011 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR 5