M/s Demi Realtors,, Hyderabad v. ACIT, Circle-8(1),, Hyderabad

ITA 649/HYD/2013 | 2008-2009
Pronouncement Date: 30-09-2016 | Result: Allowed

Appeal Details

RSA Number 64922514 RSA 2013
Assessee PAN AAFFD9401P
Bench Hyderabad
Appeal Number ITA 649/HYD/2013
Duration Of Justice 3 year(s) 4 month(s) 27 day(s)
Appellant M/s Demi Realtors,, Hyderabad
Respondent ACIT, Circle-8(1),, Hyderabad
Appeal Type Income Tax Appeal
Pronouncement Date 30-09-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 30-09-2016
Date Of Final Hearing 01-08-2016
Next Hearing Date 01-08-2016
Assessment Year 2008-2009
Appeal Filed On 03-05-2013
Judgment Text
ITA NO 649 OF 2013 DEMI REALTORS HYDERABAD PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH HYDERABAD BEFORE SMT. P.MADHAVI DEVI JUDICIAL MEMBER & SHRI S.RIFAUR RAHMAN ACCOUNTANT MEMBER ITA NO.649/HYD/2013 ( ASSESSMENT YEAR: 2008-09 ) M/S. DEMI REALTORS HYDERABAD PAN: AAFFD 9401 P VS. ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 8(1) HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI J. PRABHAKAR FOR REVENUE : SHRI V. SRINIVAS DR DATE OF HEARING : 2.8.16 DATE OF PRONOUNCEMENT : 30 .9 .16 O R D E R PER SMT. P. MADHAVI DEVI J.M. THIS IS ASSESSEES APPEAL FOR THE A.Y 2008-09. 2. BRIEF FACTS OF THE CASE ARE AS UNDER:- 3. THE ASSESSEE IS ENGAGED IN THE REAL ESTATE BUSIN ESS. THERE WAS A SEARCH AND SEIZURE OPERATION U/S 132 OF THE I .T. ACT AT THE BUSINESS PREMISES OF THE ASSESSEE ON 17.10.2007. TH E ASSESSEE FILED ITS RETURN OF INCOME FOR THE A.Y 2008-09 ON 7 .7.2009 DECLARING AN INCOME OF RS.2 01 42 190. DURING THE A SSESSMENT PROCEEDINGS U/S 143(3) OF THE ACT THE AO MADE CERT AIN DISALLOWANCES AND THE CONSEQUENTIAL ADDITIONS TO TH E RETURNED INCOME OF THE ASSESSEE. AGGRIEVED BY THE ASSESSMENT ORDER THE ASSESSEE FILED AN APPEAL BEFORE THE CIT (A). DURING THE APPELLATE PROCEEDINGS THE CIT(A) OBSERVED THAT THE ASSESSEE HAS NOT PAID THE ADMITTED TAX BEFORE FILING OF THE APPEAL. THERE FORE THE CIT (A) ITA NO 649 OF 2013 DEMI REALTORS HYDERABAD PAGE 2 OF 4 REFUESED TO ADMIT THE APPEAL AGAINST WHICH THE ASS ESSEE PREFERRED AN APPEAL BEFORE THE ITAT IN ITA NO.334/ HYD/2011. ITAT VIDE ORDERS DATED 20.01.2012 REMANDED THE MAT TER BACK TO THE FILE OF THE CIT (A) WITH THE DIRECTION TO VERIF Y WHETHER ADMITTED TAXES OF RS.77 99 676/- HAVE BEEN PAID A ND THE ADMITTED TAXES HAVE BEEN PAID IN FULL TO COMPUTE T HE DELAY IN FILING OF APPEAL UPTO THE DATE OF PAYMENT OF ALL TA XES AND THEN TO CONSIDER THE REASONS FOR DELAY ON MERITS AND TO DEC IDE ON MERITS. THE CIT (A) CONSIDERED THAT THE ADMITTED TAX AMOUNT WAS RS.77 99 676 OUT OF WHICH THE ASSESSEE HAS PAID A SUM OF RS.76 00 328 ONLY AND HENCE THERE IS A SHORTFALL O F RS.1 99 348. DURING THE APPELLATE PROCEEDINGS THE ASSESSEE ARGU ED THAT ALL TAXES HAD BEEN PAID AND THE CONDITIONS MENTIONED IN SECTION 249 OF THE I.T. ACT HAD BEEN FULFILLED BY THE ASSESSEE. IT WAS ALSO SUBMITTED THAT THE ASSESSEE HAD GIVEN IN WRITING TO THE AO TO ADJUST THE SUM OF RS.2.00 LAKHS WHICH HAD BEEN SEIZ ED DURING SEARCH AND SEIZURE AND LYING IN THE PD A/C TOWARDS THE TAX DUE FROM THE ASSESSEE. HOWEVER THE CIT (A) OBSERVED TH AT THE SUM OF RS.2.00 LAKHS WHICH HAD BEEN LYING IN THE PD A/C OF THE CIT HAD BEEN ADJUSTED AGAINST THE SHORTFALL IN TAX DEMAND O N 25 TH APRIL 2010 AND NOT TOWARDS ADMITTED TAX AND THEREFORE TH E APPEAL CANNOT BE ADMITTED. THE CIT (A) OBSERVED THAT THE A SSESSEE HAS NOT BEEN ABLE TO PROPERLY EXPLAIN THE DELAY IN FILI NG OF THE APPEAL. THEREFORE THE APPEAL OF THE ASSESSEE WAS DISMISSED IN LIMINI. AGGRIEVED THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. AT THE TIME OF HEARING THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT WITHOUT PREJUDICE TO ITS CONTENTIONS BEFORE THE CIT (A) THE ASSESSEE HAS NOW PAID A FURTHER SUM OF RS.2.00 LAKHS TOWARDS THE SHORTFALL IN THE ADMITTED TAX AND PRAYED THAT THE APPEAL MAY BE RESTORED TO THE FILE OF THE CIT ( A) FOR ITA NO 649 OF 2013 DEMI REALTORS HYDERABAD PAGE 3 OF 4 ADJUDICATION ON MERITS. IN SUPPORT OF ITS CONTENTIO NS THAT THE DEFECTS ARISING DUE TO NON COMPLIANCE OF SECTION 24 9(4) IS A CURABLE ONE HE PLACED RELIANCE UPON THE DECISION O F THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF T. KISHAN V. ACIT REPORTED IN (2012) 23 TAXMANN.COM 383 (HYD.). A COPY OF THE SAID ORDER IS FILED BEFORE US. THE LEARNED DR H OWEVER OBJECTED TO THE REMAND OF THE APPEAL TO THE FILE OF THE CIT (A). 5. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE M ATERIAL ON RECORD WE FIND THAT UNDER SUB SECTION (4) OF SECTI ON 249 OF THE I.T. ACT AN ASSESSEE IS REQUIRED TO PAY THE ADMITT ED TAX BEFORE FILING OF THE APPEAL BEFORE THE CIT (A). ADMITTEDLY THE ASSESSEE HAS FAILED TO COMPLY WITH THIS CONDITION. AFTER FIL ING OF THE APPEAL ASSESSEE HAS SOUGHT ADJUSTMENT OF THE SEIZED CASH T OWARDS THE SHORTFALL OF THE TAX DEMAND BUT SINCE THE SEIZED C ASH HAS ALREADY BEEN ADJUSTED TOWARDS THE PENDING TAX DEMAN D THE SAME WAS NOT ADJUSTED AND THE SHORTFALL CONTINUED T O REMAIN. SINCE THE ASSESSEE HAS PAID THE BALANCE OF THE TAX SUBSEQUENTLY AND RESPECTFULLY FOLLOWING THE DECISION OF THE COOR DINATE BENCH IN THE CASE OF T. KISHAN VS. ACIT (SUPRA) WE DEEM IT FIT AND PROPER TO REMAND THE ISSUE TO THE FILE OF CIT (A) W ITH A DIRECTION TO VERIFY THE PAYMENT OF ADMITTED TAX BY THE ASSESS EE; AND AFTER CONSIDERING THE APPLICATION FOR CONDONATION OF DELA Y TO BE FILED BY THE ASSESSEE FOR THE DELAY UPTO THE DATE OF PAYMENT OF THE TOTAL OF THE ADMITTED TAX THE CIT (A) SHALL CONSIDER THE SA ME IN ACCORDANCE WITH THE LAW ON MERITS AND IF SUCH DELAY IS CONDONED BY THE CIT (A) THEN THE CIT (A) SHALL ADJUDICATE T HE APPEAL OF THE ASSESSEE ON MERITS. NEEDLESS TO MENTION THAT THE AS SESSEE SHALL BE GIVEN A FAIR OPPORTUNITY OF HEARING ON ALL THE A BOVE ISSUES. ITA NO 649 OF 2013 DEMI REALTORS HYDERABAD PAGE 4 OF 4 6. IN VIEW OF THE SAME THE ASSESSEES APPEAL IS TR EATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH SEPTEMBER 2016. S D/ - S D/ - (S. RIFAUR RAHMAN) (P. MADHAVI DEVI) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD DATED 30 TH SEPTEMBER 2016. VNODAN/SPS COPY TO: 1. M/S. DEMI REALTORS 8-3-167/8/133/301 PLOT NO.133 LALITANILAYAM APARTMENTS RAJEEVNAGAR KALYANNAGAR HYDERABAD 2. ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 8(1) IT T OWERS AC GUARDS HYDERABAD 3. CIT(A) - III HYDERABAD 4. CIT II HYDERABAD 5. THE DR ITAT HYDERABAD 6. GUARD FILE BY ORDER