DCIT, CIRCLE-2(1), HYDERABAD vs. ICOMM TELE LIMITED, HYDERABAD

At the outset, the learned DR submitted that there is a delay of 48 days in filing of appeal before the Tribunal for the Revenue has filed condonation petition along with an affidavit explaining the reasons for such delay. The learned AR has not opposed the condonation petition. Considering the facts and circumstances and the reasons given by the Revenue, the delay in filing of the appeal is hereby condoned.

At the outset, it was submitted by the learned DR that the appeal of the assessee in ITA No.130/Hyd/2023 for the A.Y 2015-16 was decided by the Tribunal vide order dated 28.04.2023. It was submitted that the present appeal of the Revenue should have been heard and decided by the Tribunal along with appeal of the assessee.

Facts of the case, in brief, are that the assessee is a company and is engaged in the business of manufacturing and

The learned DR drew our attention to para No.6.1 and 6.2 of the order passed by the NFAC which read as under:

It was submitted by the learned DR that the CIT (A) NFAC deleted the addition of Rs.6,54,16,131/- without bringing on record the clinching evidence and without exercising his powers vested in him by virtue of section 250 of the I.T. Act. It was submitted that during the assessement proceedings notice u/s 133(6) was issued to 16 sub-contractors out of which only 2 sub-contractors have responded to the summons issued by the Assessing Officer. After examining the record, the Assessing Officer made addition. It was submitted that the assessee failed to produce the record of the sub-contractors to prove the genuineness of the expenditure incurred by them which is relatable to the work of the assessee. It was submitted that the order passed by the learned CIT (A) NFAC is very cryptic, non- speaking and perfunctory order.

Per contra, the learned Counsel for the assessee submitted details were provided. It was submitted that the assessee would provide all the necessary details as may be required by the learned CIT (A) in case the matter is remanded back to the file of the learned CIT (A).

We have heard the rival arguments made by both the parties and perused the orders of the AO and the learned CIT (A). From a perusal of the order of the learned CIT (A) more particularly at para 6.1 and 6.2 reproduced herein above, it is abundantly clear that the learned CIT (A) have failed to exercise his powers vested in him by virtue of section 250 of the I.T. Act which cast a duty on the CIT (A) to make such further inquiries, as he considered fit or direct the Assessing Officer to conduct such inquiries which are necessary for disposal of the appeal. Once the Assessing Officer in the present case had issued notice Page 10 of 12

Furthermore, the primary onus is on the assessee to prove that the expenditure incurred by the sub-contractors were necessary and relatable to the work of the assessee. No evidence has been produced before the Assessing Officer or before the learned CIT (A) therefore, in absence of any material, it is not fair on the part of the learned CIT (A) to delete the addition. In the light of the above discussion, we deem it proper to remand the matter to the file of the learned CIT (A) with a direction to decide the grounds raised before us in accordance with law after giving due opportunity of being heard to the assessee. The assessee is also hereby directed to produce the evidence of rendering of service by the sub-contractors to the assessee which are very essential and integral part of the work of the assessee. The learned CIT (A) may call for the remand report in case any evidence is filed by the assessee in remand proceedings.

In the result, appeal filed by the Revenue is allowed for statistical purposes. Order pronounced in the Open Court on 12th December, 2023. Sd/- Sd/- (R.K. PANDA) (LALIET KUMAR) VICE-PRESIDENT JUDICIAL MEMBER Hyderabad, dated 12th December, 2023. Vinodan/SPS