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Income Tax Appellate Tribunal, HYDERABAD BENCH “B”, HYDERABAD
Before: SMT. P. MADHAVI DEVI & SHRI A. MOHAN ALANKAMONY
\IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH “B”, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER (Through Virtual Hearing) Assessment Year:2012-13 M/s. Viceroy Bangalore Vs. DCIT, Hotels Private Limited, Circle-17(2), Hyderabad – 500 003. Hyderabad. PAN: AADCV 2102 L (Appellant) (Respondent) Assessee by: Shri P. Murali Mohana Rao Revenue by: Smt. K.J. Divya, DR Date of hearing: 08/10/2020 Date of pronouncement: 12/10/2020 ORDER PER A. MOHAN ALANKAMONY, AM.:
This appeal is filed by the assessee against the order of the ld. CIT (A)-5, Hyderabad in appeal No. 0018/2015-16/CIT(A)-5, dated 27/02/2017 passed U/s. 143(3) r.w.s 250(6) of the Act for the AY: 2012- 13.
The assessee has raised eight grounds in its appeal which are extracted herein below for reference:-
“1. The order of the Ld. CIT (A)-5, Hyderabad is erroneous both on facts and in law to the extent the order is prejudicial to the interest of assessee.
2. The Ld. CIT (A) erred in upholding the disallowance made U/s. 40(a)(ia) of the Act for a sum of Rs. 33,04,100/- on the reason of non-deduction of TDS on the reimbursement of expenditure incurred by JP Morgan India property Mauritius Company-II on assessee’s behalf.
3. The Ld. CIT (A) has grossly erred in treating the reimbursement of expenditure incurred by JP Morgan India Property Mauritius Company-II at outside India on behalf of the assessee as that of ‘fees for technical services’. 4. The Ld. CIT (A) has erred in concluding that the TDS is deductible on the reimbursement of certain expenditure made to JP Morgan India Property Mauritius Company-II under Chapter XVIIB of Act. 5. The Ld. CIT (A) has erred in interpreting the second proviso U/s. 40(a)(ia) as not applicable to payments subject to TDS U/s. 195 of the Act, when the proviso has referred to cover all the payments falling under Chapter-XVIIB of the Act. 6. The Ld. CIT (A) erred in differentiating the disallowance U/s. 40(a)(ia) r.w.s 195 and the disallowance U/s. 40(a)(ia) r.w.s 194 of the IT Act, 1961. 7. The Ld. CIT (A) ought to have appreciated the Clause-(b) of section 9(1)(vii) is applicable to this case and that therefore, the payment cannot be treated as income to JP Morgan India property Mauritius Company-II and consequently no TDS need to be deducted. 8. The assessee may add, alter or modify or substitute any other point to the grounds of appeal at any time before or at the time of hearing the appeal.”
The Ld. AR at the beginning of the hearing submitted 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 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 proper 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) except filing the written submissions. It was further submitted that in the this circumstance the 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.
We have heard the rival submissions and carefully 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 date of hearing apart from filing the written submissions. Therefore, the Ld. CIT (A) was left with no other option except to adjudicate the appeal ex-parte based on the material available on record. In this situation, We do not find much strength in the arguments advanced by the ld. AR. However, considering the prayer of the Ld. AR and 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 breath, We also hereby caution the assessee and its Representative to promptly co-operate before the Ld. CIT (A) in the 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.
In the result, appeal filed by the assessee is allowed for statistical purposes as indicated hereinabove.
Pronounced in the open Court on 12th October, 2020.