SHWAS HOMES PVT LTD,TRIPUNITHURA vs. ITO, CORPORATE WARD 2(1), KOCHI

We first come assessee’s former appeal wherein both the lower authorities have disallowed the assessee’s alleged commission payment of Rs.5,96,087 on account of non-deduction of TDS thereupon. It is noticed from pages 3 to 4 of the lower appellate discussion that the assessee had infact claimed the said sum as “discount on reference” than a commission payment inviting TDS deduction. That being the case, we are of the considered view that both the lower authorities have erred in law and on facts in making the impugned disallowance in very terms. This assessee’s former appeal ITA No.124/Coch/2024 is allowed.

Delay of 47 days in filing the instant appeal before the Tribunal is condoned as per assessee’s solemn averments in light of Collector, Land Acquisitions vs. MST.Katiji (1987) 167 ITR 471 (SC) having settled the law long back that all such technical aspects must make a way for the cause of substantial justice.

Coming to the assessee’s latter appeal it emerges during the course of hearing that the NFAC has noted the assessee’s continuous non- appearance in the lower appellate proceedings before rejecting its contentions vide ex-parte order under challenge. Learned Sr.DR could hardly dispute the clinching fact that the NFAC’s order has nowhere decided the assessee’s substantive grounds on merits as contemplated u/sec.250(6) of the Act requiring it to fame points for determination followed by a & 125/Coch/2024. Shwas Homes (P) Ltd. detailed adjudication thereupon. Faced with the situation, we deem it appropriate in the larger interest of justice to restore the assessee’s instant appeal back to the NFAC for it’s afresh adjudication, preferably within three effective opportunities of hearing, subject to a rider that it shall be the taxpayer’s onus and responsibility only to file and prove all the relevant facts in consequential proceedings. This assessee’s latter appeal is allowed for statistical purposes in very terms. Ordered accordingly.

To sum up, assessee’s former appeal is allowed and assessee’s latter case is allowed for statistical purposes. A copy of the common order be placed in the respective case files.