Sujana Towers Limited(Presently known as Neueon Towers Limited), Hyderabad v. Asst. Commissioner of Income Tax, Circle-2(1), Hyderabad

ITA 836/Hyd/2018 | 2017-2018
Pronouncement Date: 09-03-2021 | Result: Partly Allowed

Appeal Details

RSA Number 83622514 RSA 2018
Assessee PAN AAKCS7820F
Bench Hyderabad
Appeal Number ITA 836/Hyd/2018
Duration Of Justice 2 year(s) 10 month(s) 5 day(s)
Appellant Sujana Towers Limited(Presently known as Neueon Towers Limited), Hyderabad
Respondent Asst. Commissioner of Income Tax, Circle-2(1), Hyderabad
Appeal Type Income Tax Appeal
Pronouncement Date 09-03-2021
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted DB-B
Tribunal Order Date 09-03-2021
Last Hearing Date 02-03-2021
First Hearing Date 02-03-2021
Assessment Year 2017-2018
Appeal Filed On 04-05-2018
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B HYDERABAD (THROUGH VIRTUAL HEARING) BEFORE SMT. P. MADHAVI DEVI JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY ACCOUNTANT MEMBER ITA NO.836/HYD/2018 AY: 2017 - 18 SUJANA TOWERS LIMITED (PRESENTLY KNOWN AS NEU E ON TOWERS LIMITED) HYDERABAD. PAN: AAKCS 7820 F VS. ACIT TDS CIRCLE - 2(1) HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI P. MURALI MOHANA RAO REVENUE BY: SHRI Y.V.S.T. SAI CIT - DR DATE OF HEARING: 2/3/2021 DATE OF PRONOUNCEMENT: 09 /3/2021 ORDER A. MOHAN ALANKAMONY AM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) - 8 HYDERABAD IN APPEAL NO. 10305/CIT(A) - 8 /HYD/2016 - 17 DATED23/2/2018 PASSED U/S. 221(1) R.W.S U/S. 250(6) OF THE ACT FOR THE A.Y.: 201 7 - 18. 2. THE ASSESSEE HAS RAISED FOURTEEN GROUNDS IN ITS APPEAL AND THEY ARE EXTRACTED HEREIN BELOW FOR REFERENCE: - 1. THE ORDER OF THE LD. CIT (A) IS ERRONEOUS BOTH ON FACTS AND IN LAW. 2. THE LD. CIT (A) ERR ED IN CONFIRMING THE PENALTY OF RS. 10 017/ - LEVIED U/S. 221(1) OF THE ACT FOR THE AY 2017 - 18 WITHOUT APPRECIATING THE FACTS OF THE CASE . 2 3. THE LD. CIT (A) ERRED IN DISMISSING THE APPEAL WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE APPELLANT. 4. THE AO OUGHT OT HAVE APPRECIATED THE FACT THAT TDS DEMAND IS DUE TO FILING OF TDS RETURNS MISMATCH AND THE SAME WILL BE RECTIFIED. 5. THE LD. CIT (A) OUGHT TO HAVE APPRECIATED THE FACT THAT CIRCUMSTANCES WHICH LEAD TO THE DELAY IN PAYMENT OF TAXES BY T HE APPELLANT IS BEYOND ITS CONTROL AND THAT THE SAME IS NOT INTENTIONAL. 6. THE LD. CIT (A) OUGHT TO HAVE APPRECIATED THE FACT THAT THE APPELLANT COMPANY COULD NOT PAY THE AMOUNT OF TAX FOR THE YEAR UNDER CONSIDERATION DUE TO PAUCITY OF FUNDS AND FINANCIAL CRISES OF THE ASSESSEE COMPANY. 7. THE LD. CIT (A) OUGHT TO HAVE APPRECIATED THAT THE AO OUGHT TO HAVE DROPPED THE PROCEEDING U/S. 221(1) WHEN THERE ARE SUFFICIENT REASONS FOR NOT MAKING PAYMENT OF TAXES BY THE APPELLANT. 8. THE LD. CIT (A) OUGHT TO HAVE APPRECIATED THAT IMPOSITION OF PENALTY U/S. 221(1) IS NOT MANDATORY AND IT IS ONLY DISCRETIONARY AND SHALL BE EXERCISED JUDICIALLY BY TAKING ALL ASPECTS INTO CONSIDERATION. 9. THE AO OUGHT TO HAVE APPRECIATED THAT PROVISION OF SECTION 221(1) OF T HE ACT IS APPLICABLE ONLY WHEN THE ASSESSEE IS TREATED AS IN DEFAULT OF PAYMENT OF TAXES IE DUE TO SHORT PAYMENT OR SHORT DEDUCTION BUT IN PRESENT CASE THE DEMAND PAYABLE IS DUE TO MISMATCH OF RETURNS. 10. THE LD. CIT (A) OUGHT TO HAVE APPRECIATED THE FAC T THAT ASSESSEE HAS NOT BEEN TREATED AS ASSESSEE IN DEFAULT U/S. 201(1) OF THE IT ACT 1961. 11. THE AO OUGHT TO HAVE APPRECIATED THAT PENALTY CANNOT BE IMPOSED IF THERE IS NO CONSCIOUS BREACH OF LAW. [1972] 83 ITR 26 (SC) SU PREME COURT OF INDIA HINDUSTAN STEEL LTD VS. STATE OF ORISSA. 12. THE AO ERRED IN CONSIDERING TAX AS OBSERVED IN SECTION 2(43) AS INCOME TAX SUPER TAX FRINGE BENEFIT TAX PAYABLE AND NOT THE INTEREST COMPONENT U/S. 201(1A) / 220(2) AND LEVY OF FEE U/S. 234E OF THE ACT IN TA KING INTO CONSIDERATION FOR LEVY OF THE PENALTY U/S. 221(1) OF THE ACT. 13. THE AO ERRED IN LEVYING THE PENALTY U/S. 221(1) OF THE ACT WITHOUT CONSIDERING THE SECOND PROVISO TO THE SAID SECTION 221 OF THE ACT. 14. THE APPELLANT MAY ADD OR ALTER OR AMEND O R MODIFY OR SUBSTITUTE OR DELETE AND / OR RESCIND ALL OR ANY OF THE GROUNDS OF APPEAL AT ANY TIME BEFORE THE TIME OF HEARING OF THE APPEAL. 3. AT THE OUTSET THE LD. AR SUBMITTED BEFORE US THAT THE LD. CIT (A) HAS PASSED EX - PARTE ORDER WITHOUT PROVIDING PROPER OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. IT WAS THEREFORE PLEADED THAT THE MATTER MAY 3 BE REMITTED BACK TO THE FILE OF THE LD CIT (A) IN ORDER TO PROVIDE ONE MORE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD . LD. DR ON THE OTHER HAND VEHEMENTLY OPPOSED TO THE SUBMISSIONS OF THE LD. AR AND ARGUED THAT SUFFICIENT OPPORTUNITIES HAD BEEN PROVIDED TO THE ASSESSEE HOWEVER ON THE GIVEN DATES OF HEARING NEITHER THE ASSESSEE NOR ITS REPRESENTATIVE APPEARED BEFORE THE LD. CIT (A). THEREFORE TH E LD. CIT (A) HAD NO OTHER OPTION BUT TO PASS EX - PARTE ORDER BASED ON THE MATERIALS AVAILABLE ON RECORD. HENCE IT WAS PLEADED THAT THE ORDER PASSED BY THE LD. CIT(A) DOES NOT CALL FOR ANY INTERFERENCE. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSED THE MATERIALS ON RECORD. ON EXAMINING THE FACTS OF THE CASE WE FIND MERIT IN THE SUBMISSIONS OF THE LD. DR. THE LD. CIT (A) HAD POSTED THE CASE ON SEVERAL OCCASIONS. HOWEVER NONE APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE CIT(A) ON THE DA TES OF HEARING. THEREFORE THE LD. CIT (A) WAS LEFT WITH NO OTHER OPTION EXCEPT TO ADJUDICATE THE APPEAL EX - PARTE. IN THIS SITUATION WE DO NOT FIND MUCH STRENGTH IN THE ARGUMENTS ADVANCED BY THE LD. AR. HOWEVER WE FIND THAT THE LD.CIT(A) HAS NOT PASSED A SPEAKING ORDER ON MERITS. THEREFORE IN THE INTEREST OF JUSTICE WE HEREBY REMIT THE MATTER BACK TO THE FILE OF LD. 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 BR EATH WE ALSO HEREBY CAUTION THE ASSESSEE TO PROMPTLY CO - OPERATE BEFORE THE LD. CIT (A) IN THE 4 PROCEEDINGS 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. 5. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED HEREINABOVE. PRONOUNCED IN THE OPEN COURT ON THE 09 TH MARCH 2021. SD/ - SD/ - (SMT. P. MADHAVI DEVI) ( A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD DATED: 09 TH MARCH 2021 OKK COPY TO: - 1) SUJANA TOWERS LIMITED (PRESENTLY KNOWN AS NEUEON TOWERS LIMITED) C/O. P. MURALI & CO. CHARTERED ACCOUNTANTS 6 - 3 - 655/2/3 IST FLOOR SOMAJIGUDA HYDERABAD 500 082. 2) ACIT TDS CIRCLE - 2(1) HYDERABAD. 3) CIT (A) - 8 HYDERABAD. 4) CIT (TDS) HYDERABAD. 5) THE DR ITAT HYDERABAD 6) GUARD FILE