Bhuvaneshwari Agro Industries, Nizamabad v. Income Tax Officer, Ward-2, Hyderabad

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B - SMC HYDERABAD BEFORE SHRI A. MOHAN ALANKAMONY ACCOUNTANT MEMBER ITA NO.2222/HYD/2018 ASSESSMENT YEAR: 2015 - 16 M/S. BHUVANESWARI AGR O INDUSTRIES NIZAMABAD. PAN: AAMFB 4795 K VS. INCOME TAX OFFICER WARD - 2 NIZAMABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY: SRI A. SRINIVAS REVENUE BY: SMT. KOMALI KRISHNA DR DATE OF HEARING: 05/11/2019 DATE OF PRONOUNCEMENT: 05/11/2019 ORDER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER FO THE LD. CIT(A) - 5 HYDERABAD IN APPEAL NO.0304/2017 - 18/CIT(A) - 5 DATED 23/07/2018 PASSED U/S. 143(3) R.W.S 250(6) OF THE ACT FOR THE A.Y. 2015 - 16. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL: - (I) THE ORDER OF THE LD. CIT(A) IS CONTRARY TO LAW FACTS AND CIRCUMSTANCES OF THE CASE. (II) THE APPELLATE COMMISSIONER OUGHT NOT TO HAVE DISMISSED THE APPEAL EXPARTE. (III) THE APPELLATE COMMISSIONER OUGHT NOT TO HAVE CONFIRMED THE ADDITION MADE BY THE A.O. AMOUNTING TO RS. 33 18 846/ - BEING PAYMENTS OF VAT AND CST. 2 (IV) ANY OTHER GROUND OR GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING. 3. AT THE OUTSET LD. AR SUBMITTED BEFORE US THAT THERE IS A DELAY OF 52 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL. IN THIS REGARD LD. AR BROUGHT MY ATTENTION TOWARDS THE AFFIDAVIT FILED BY THE ASSESSEE SEEKING CONDONATION OF DELAY WHEREIN THE REASON S FOR NOT FILING THE APPEAL WITHIN THE PRESCRIBED TIME LIMIT WAS EXPLAINED. FOR REFERENCE T HE RELEVANT PORTIONS FROM THE AFFIDAVIT IS EXTRACTED HEREIN BELOW: - 7. THE REASONS FOR DELAY OF 52 DAYS ARE AS UNDER: A) THE CASE WAS ENTRUSTED TO THE CHARTERED ACCOUNT AT HYDERABAD FOR FILING THE APPEAL. B) THE CHARTERED ACCOUNTANT WAS NOT WELL AND IN AND OUT OF HOSPITALS FOR A CONSIDERABLE TIME. C) ON ENQUIRY WE HAD REALISED THAT THE APPEAL WAS NOT FILED. D) WE THEN IMMEDIATELY ENTRUSTED THE CASE TO ANOTHER CHARTERED ACCOUNTANT WHO FILED THE APPEAL. 4. AFTER HEARING THE SUBMISSIONS OF THE LD. AR AND ON PERU SAL OF THE AFFIDAVIT FILED BY THE ASSESSEE EXPLAINING THE REASONS FOR DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL I DO NOT FIND MUCH MERIT IN THEIR SUBMISSIONS BECAUSE THE ASSESSEE HAS NOT FOLLOWED UP THE PROGRESS OF ITS CASE . HOWEVER SINCE THE REASON FOR DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL IS NOT SOLELY ATTRIBUTABLE TO THE ASSESSEE IN THE INTEREST OF JUSTICE I HEREBY CONDONE THE DELAY IN THE FILING THE APPEAL BEFORE THE TRIBUNAL. 5 . ON MERITS AT THE OUTSET THE LD. AR BRIEFLY NARRATED TH E FACTS OF THE CASE AND SUBMITTED THAT THE LD. CIT (A) HAS PASSED EX - PARTE ORDER 3 NOT BASED ON MERITS AND WITHOUT PROVIDING AN OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. IT WAS THEREFORE PLEADED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE LD CIT (A) IN ORDER TO PROVIDE ONE MORE OPPORTUNITY TO THE ASSESSEE TO PURSUE THE APPEAL . LD. DR ON THE OTHER HAND VEHEMENTLY OPPOSED TO THE SUBMISSIONS OF THE LD. AR AND ARGUED THAT SEVERAL OPPORTUNITIES HAD BEEN PROVIDED TO THE ASSESSEE HOWEVER ON THE G IVEN DATES OF HEARING NEITHER THE ASSESSEE NOR HIS REPRESENTATIVE APPEARED BEFORE THE LD. CIT (A). IT WAS FURTHER SUBMITTED THAT THE LD. CIT (A) HAD NO OTHER OPTION BUT TO PASS EX - PARTE ORDER . HENCE IT WAS PLEADED THAT THE APPEAL OF THE ASSESSEE MAY BE DISMISSED. 6. I HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE MATERIALS ON RECORD. ON EXAMINING THE FACTS OF THE CASE I FIND MERIT IN THE SUBMISSIONS OF THE LD. DR. THE LD. CIT (A) HAD POSTED THE CASE ON FOUR OCCASIONS IE. 28/3/2018 25/ 4/2018 14/5/2018 AND FINALLY ON 22/6/2018. HOWEVER NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE ABOVE - MENTIONED DATES OF HEARING. THEREFORE THE LD. CIT (A) WAS LEFT WITH NO OTHER OPTION EXCEPT TO ADJUDICATE THE APPEAL EX - PARTE. IN THIS SITUATION I DO NOT FIND MUCH STRENGTH IN THE ARGUMENTS ADVANCED BY THE LD. AR. HOWEVER CONSIDERING THE PRAYER OF THE LD. AR AND THE FACT THAT THE LD. CIT (A) HAS DISMISSED THE APPEAL INLIMINE AND NOT ON MERITS IN THE INTEREST OF JUSTICE I HEREBY REMIT THE MATTER B ACK TO THE FILE OF LD. 4 CIT (A) IN ORDER TO CONSIDER THE APPEAL AFRESH ON MERITS BY PROVIDING ONE MORE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. AT THE SAME BREATH I ALSO HEREBY CAUTION THE ASSESSEE TO PROMPTLY CO - OPERATE BEFORE THE LD. CIT (A) IN THE PR OCEEDINGS FAILING WHICH THE LD. CIT (A) SHALL BE AT LIBERTY TO PASS APPROPRIATE ORDER IN ACCORDANCE WITH LAW AND MERITS BASED ON THE MATERIALS ON THE RECORD. IT IS ORDERED ACCORDINGLY. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTIC AL PURPOSES AS INDICATED HEREINABOVE. PRONOUNCED IN THE OPEN COURT ON 05 TH NOVEMBER 2019. SD/ - ( A. MOHAN ALANKAMONY ) ACCOUNTANT MEMBER HYDERABAD DATED: 05 TH NOVEMBER 2019 OKK COPY TO: - 1) M/S. BHUVANESHWARI AGRI INDUSTRIES SY. NO. 74 & 74P2 KHANAPUR NIZAMABAD 503002. 2) INCOME TAX OFFICER WARD - 2 NIZAMABAD. 3) THE CIT(A) - 5 HYDERABAD 4) THE PR. CIT - 5 HYDERABAD 5) THE DR ITAT HYDERABAD 6) GUARD FILE