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Income Tax Appellate Tribunal, AHMEDABAD “D” BENCH
Before: SHRI MAHAVIR PRASAD & SHRI WASEEM AHMED
PER MAHAVIR PRASAD, J.M.
This appeal has been filed by the Assessee is directed against the order of the Ld. CIT(A) vide Appeal No. CIT(A)-2/10716/2016-17 order dated 05/07/2019 arising
ITA No. 1346/Ahd/2019 2 . A.Y. 2014-15 out of assessment order dated 15/12/2016. The assessee has taken following grounds of appeal: 1) On the facts and circumstances of the case, the Learned CIT (A) has erred in dismissing the appeal without adjudicating the grounds on merits thereby conveniently ignoring all the facts and evidences that were forming part of the records before him. 1.1. On the facts and in the circumstances of the case and in law, the Id. CIT(A) failed to appreciate that: a) the Appellant was prevented by sufficient and reasonable cause from attending the hearing of appeal; b) the appeal of the preceding previous year relevant to A.Y.2013-14 on the similar issues was under progress; c) certain issues have already decided by the CIT(A) in the past in favour of the Appellant; and d) The Id. CIT(A) ought to have allowed at least one more opportunity of hearing to the Appellant before passing the ex-parte order in the fairness of the law. 2. On the facts and circumstances of the case, the learned CIT (A) erred in confirming the action of A.O who had made disallowance of Rs. 32,20,415/- u/s. 40(a)(ia) of the Income-tax Act. The1 addition made to the income of the Appellant deserves to be deleted. 3. On the facts and circumstances of the case, the learned CIT(A) erred in confirming the action of A.O who made disallowance of Rs. 1,73,06,442/- u/s 14A read with Rule 8D by way of disallowing proportionate interest and administrative expenses claimed to have been incurred relating to exempt income. The addition made to the income of the Appellant deserves to be deleted. 4. On the facts and circumstances of the case, the learned CIT(A) erred in confirming the action of A.O who had disallowance of Rs. 2,43,08,422/- by way of disallowing interest expenses on the plea that the appellant has given interest free loans and advances to associate concerns. The addition made to the income of the Appellant deserves to be deleted. 5. On the facts and circumstances of the case, the learned CIT(A) erred in confirming the action of A.O who had made disallowance of Rs. 31,672/- by way of disallowing interest expenses on the plea that these debts are outstanding since long period. The addition made to the income of the Appellant deserves to be deleted. 6. On the facts and circumstances of the case, the learned CIT(A) erred in confirming the action of A.O who had made addition of Rs. 17,003/- to the income of the Appellant on account of delayed payments of employee's contribution to PF by invoking the provisions of sections 2(24)(x) r.w.s. 36(l)(va) of the income-tax Act, 1961. The addition made to the income of the Appellant deserves to be deleted.
ITA No. 1346/Ahd/2019 3 . A.Y. 2014-15 7. On the facts and circumstances of the case, the learned CIT(A) erred in confirming the action of A.O rejecting the claim and confirming respectively for depreciation @25% amounting to Rs. 13, 27,94,320 on cost/WDV of certain fixed assets in respect of Dewas Water Supply Project and allowing deduction of Rs. 7,59,31,979/- in respect of depreciation @ 15%/10% on these fixed assets and thereby erred in making an effective addition of Rs. 5,68, 62,341/- to the income of the Appellant. The addition made to the income of the Appellant deserves to be deleted. On the facts and circumstances of the case, the learned CIT(A) ought to have admitted Assessee's additional claim of depreciation of Rs 98,43,033/- in light of section 251 r.w.s 254 of the Act. 8.1. On the facts and circumstances of the case, the learned CIT(A) has erred in confirming the action of A.O law and on facts by not accepting the additional claim for depreciation of Rs. 12,71,48,924/- on intangible assets representing cost/WDV of the BOT project on the basis of amortization of the BOT project events over the period of concessionaire agreement after adjusting grant/subsidy received from the government put forward by the appellant in the course of assessment proceedings but allowed such depreciation at Rs. 11,73,05,891/- @ 25% and thereby erred in making an effective addition of Rs.98,43,033/- to the income of the appellant by way of allowing short depreciation. 9. On the facts and circumstances of the case, the learned CIT(A) erred in confirming the addition of Rs. 1,73,06,442/- to the book profit of the Appellant by way of adding back disallowance made u/s. 14A r.w.r. 8D and therein erred in enhancing the book profit artificially. The addition made to the book profit of the Appellant deserves to be deleted.
Brief facts of the case are that the assessee in the business of Civil engineering and Infrastructure. The assessee had electronically filed its return of income u/s. 139(1) of the Act on 18.11.2014 declaring total loss of Rs. 16,23,31,688/-. Thereafter the case was selected for scrutiny and notices u/s. 143(2) and 142(1) were issued to the assessee for calling thereby preliminary information documents such as copy of audited balance sheet and tax audit report in form no. 3CB & 3CD etc. and thereafter disallowance of Rs. 17,306,442/- u/s. 14A r.w. Rule 8d and disallowance of Rs. 24,308,422/- of interest expenses and disallowance of interest of Rs. 31,672/- on the ground disallowance of interest expenses on the ground that debts are outstanding since long period.
ITA No. 1346/Ahd/2019 4 . A.Y. 2014-15 3. The addition of Rs. 17,003/- to the income of the appellant on account of delayed payments of employee’s contribution to Pf by invoking the provisions of sections 2(24)(x) r.w.s. 36(1)(va) of the Income Tax Act.
With regard to claim and confirming respectively for depreciation @ 25% amounting to Rs. 13,27,94,320/- on cost/WDV of certain fixed assets in respect of Dewas Water Supply Project and allowing deduction of Rs. 7,59,31,979/- in respect of depreciation @ 15%/10% on these fixed assets and on fixed assets then rejecting the claim of additional depreciation of Rs. 88,43,033/- in the light of section 251 r.w.s. 254 of the Act.
With regard to rejecting the claim of depreciation of Rs. 12,71,48,924/- on intangible assets and with regard to allowing short depreciation. 6. Against the above said disallowance and additions, assessee preferred first statutory appeal before the Ld. CIT(A) but did not appear before the Ld. CIT(A) and several notices were issued by the Ld. CIT(A) for filing of submission by the appellant. Since neither file any submission nor appeared before the Ld. CIT(A), so, ld. CIT(A) dismissed the appeal of the assessee for non-prosecution.
Now appellant has come before us by way of second statutory appeal. at the outset Ld. A.R. fairly conceded that because of some unavoidable circumstances, assessee could not appear before the Ld. CIT(A). Thus, it should be given one more chance to plead its case on merit before the Ld. CIT(A).
We have heard both the parties and perused material available on record. Undisputedly, Ld. CIT(A) has dismissed the appeal of the assessee on the ground of non-prosecution. Since assessee has wasted precious time of the Ld. CIT(A) for not appearing before him without any reason, therefore in these circumstances, we set aside mater back to the file of the Ld. CIT(A) subject to the condition that appellant shall pay a cost of Rs. 25,000/- to the department within 60 days from the receipt of
ITA No. 1346/Ahd/2019 5 . A.Y. 2014-15 this order. And thereafter Ld. CIT(A) shall proceed with the appeal and we refrain ourselves to make any comment on the merit of the case and Ld. CIT(A) shall decide appeal of the assessee after considering the submission to be filed before him and thereafter pass an order as per law.
In the result, appeal filed by the Assessee is allowed for statistical purposes. .
Order pronounced in Open Court on 29 - 10- 2021
Sd/- Sd/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER True Copy JUDICIAL MEMBER Ahmedabad: Dated 29/10/2021 Rajesh Copy of the Order forwarded to:- 1. The Appellant. 2. The Respondent. 3. The CIT (Appeals) – 4. The CIT concerned. 5. The DR., ITAT, Ahmedabad. 6. Guard File.
By ORDER
Deputy/Asstt.Registrar ITAT,Ahmedabad