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Income Tax Appellate Tribunal, Hyderabad ‘ B ‘ Bench, Hyderabad
Before: Shri R.K. Panda & Shri K. Narasimha Chary
आयकर अपील�य अ�धकरण, हैदराबाद पीठ IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘ B ‘ Bench, Hyderabad Before Shri R.K. Panda, Accountant Member AND Shri K. Narasimha Chary, Judicial Member Assessment Year: 2012-13 Nalamati Sea Foods (P) Ltd Vs. Income Tax Officer Hyderabad Ward 16(2) PAN: AABCN1440K Hyderabad (Appellant) (Respondent) Assessee by: Shri E.S. Ranganath, CA Revenue by: Shri Kumar Aditya, DR Date of hearing: 16/01/2023 Date of pronouncement: 16/01/2023 ORDER Per R.K. Panda, A.M
This appeal filed by the assessee is directed against the order dated 26.8.2022 of the learned CIT (A)-NFAC, Delhi relating to A.Y. 2012-13.
Although a number of grounds have been raised by the assessee, however, these all relate to the order of the CIT (A)- NFAC Delhi in confirming the penalty of Rs.40,25,000/- levied by the Assessing Officer u/s 271(1)(c) of the I.T. Act.
ITA 546 of 2022 Nalamati Sea Foods P Ltd Hyderabad
Facts of the case, in brief, are that the assessee is a company engaged in the business of export of sea food. It filed its return of income on 26.09.2012 declaring total income at Rs.15,79,480/- under normal provisions and book loss of Rs.6,06,129/- u/s 115JB of the I.T. Act, 1961. The Assessing Officer completed the assessment u/s 143(3) on 19.3.2015 wherein he determined the total income under the normal provisions at Rs.37,38,890/- and book profit u/s 115JB at Rs.1,83,32,103/-. So far as the income under normal provision is concerned, the Assessing Officer made two additions namely Rs.11,40,000/- u/s 50C and Rs.10,19,417/- by disallowing certain expenses. So far as determination of book profit u/s 115JB is concerned, the Assessing Officer did not allow the reduction of profit on sale of asset to the tune of Rs.1,86,25,734/-.
In appeal, the learned CIT (A) confirmed the additions/disallowances made by the Assessing Officer. Thereafter, the Assessing Officer initiated proceedings u/s 271(1)(c) of the I.T. Act and levied penalty of Rs.40,25,000/-.
4.1 In appeal, the learned CIT (A)-NFAC Delhi dismissed the appeal filed by the assessee by observing as under: “5. Decision:- The assessee has been given several opportunities to represent its case on 29.01.2021, 04.03.2022 and 28.07.2022. In fact till date nothing has been heard from the appellant on the questions raised. No explanation whatsoever has been offered by the appellant to justify its claims. Thus, it appears that the appellant is not interested in proceeding with the appeal filed. Therefore, having considered the facts of the case and evidences available on record, the addition made by the Assessing Officer is sustained, while dismissing all grounds of appeal”. Page 2 of 5
ITA 546 of 2022 Nalamati Sea Foods P Ltd Hyderabad
Aggrieved with such order of the learned CIT (A)-NFAC the assessee is in appeal before the Tribunal.
The learned Counsel for the assessee at the outset filed copy of the order of the Tribunal in assessee’s own case in the quantum proceedings and submitted that the Tribunal vide order dated 11.06.2021 for A.Y 2012-13 has given part relief to the assessee by deleting the addition of Rs.11,40,000/- made u/s 50C of the I.T. Act. So far as the issue relating to book profit is concerned, the Tribunal has restored the issue to the file of the Assessing Officer for factual verification. He accordingly submitted that he has no objection if the matter is restored to the file of the Assessing Officer for adjudicating the issue afresh since the order of the Tribunal dt. 11.06.2021 was not considered by the learned CIT (A)-NFAC in the order dated 26.8.2022.
The learned DR, on the other hand, while objecting to the arguments advanced by the learned Counsel for the assessee submitted that despite number of opportunities granted, the assessee never appeared before the CIT (A)-NFAC and therefore, this matter should be restored to the file of the CIT (A)-NFAC.
We have heard the rival arguments made by both the sides, perused the orders of the AO and the learned CIT (A)-NFAC and the paper book filed on behalf of the assessee. We find the AO in the instant case levied penalty of Rs.40,25,000/- u/s 271(1)(c) of the Act on the ground that the assessee failed to offer any explanation regarding the amount added or disallowed and therefore, the assessee has concealed its particulars of income
ITA 546 of 2022 Nalamati Sea Foods P Ltd Hyderabad within the meaning of Explanation to section 271(1)(c) of the I.T. Act. We find the assessee did not appear before the CIT (A)-NFAC for which the learned CIT (A)-NFAC has confirmed the penalty levied by the Assessing Officer and dismissed the appeal filed by the assessee. We find the Tribunal in assessee’s own case in the quantum proceedings has deleted the addition of Rs.11,40,000/- made by the Assessing Officer u/s 50C of the I.T. Act and the issue of computation of book profit u/s 115 JB has been restored to the file of the Assessing Officer with certain directions. The order of the Tribunal which was passed prior to the order passed by the learned CIT (A)-NFAC was never considered by the CIT (A)- NFAC while dismissing the appeal filed by the assessee. Considering the totality of the facts of the case and in the interest of natural justice, we deem it proper to restore the issue to the file of the Assessing Officer with a direction to re-adjudicate the issue afresh. Needless to say the Assessing Officer shall decide the issue as per fact and law after giving due opportunity of being heard to the assessee. We hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes.
In the result, appeal filed by the assessee is allowed for statistical purposes.