BOMBAY DUCK DINING COMPANY PRIVATE LIMITED,HYDERABAD vs. ACIT., CIRCLE 1(1), HYDERABAD
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Income Tax Appellate Tribunal, Hyderabad ‘B’ Bench, Hyderabad
Before: SHRI LALIET KUMAR & SHRI MADHUSUDAN SAWDIA
आदेश/ORDER PER MADHUSUDAN SAWDIA, A.M.: This appeal is filed by M/s. Bombay Duck Dining Company Pvt. Ltd., Hyderabad (“the assessee”), feeling aggrieved by the order passed by the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi (“Ld. CIT(A)”), dated 16.08.2023 for the A.Y. 2016-17. 2. At the outset, it is seen that, there is a delay of 367 days in filing of this appeal for which the assessee has filed a condonation petition along with affidavit explaining the reasons
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for such delay. The Ld. AR submitted that, the Ld. CIT(A) send the notices at srajaneni@gmail.com, which was the email ID of the previous auditor and the previous auditor did not inform the assessee about the notices issued by Ld. CIT(A). When the assessee got notice for payment of outstanding demand from Ld. AO at sudhakar@zero40.com, then only the assessee came to know that the Ld. CIT(A) has passed the order u/s 250 of the Income Tax Act, 1961 ('the Act') and has dismissed the appeal of the assessee. Therefore, as soon as the assessee came to know about the dismissal of the appeal by the Ld. CIT(A), the assessee filed appeal before the tribunal with a delay of 367 days. Therefore, the delay caused in filing of appeal before the tribunal was beyond of the control of the assessee. After considering the contents of the condonation petition and after hearing the Ld. DR, the delay of 367 days in filing of this appeal is condoned and the appeal is admitted for adjudication.
The grounds raised by the assessee reads as under :
“1. The order of the learned Commissioner of Income Tax (Appeals) is against the law, weight of evidence and probabilities of case. 2. The learned Commissioner erred in confirming addition of Rs.76,20,000/- made u/s 68 of the IT Act in respect of share premium
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received during the year relevant to the subject assessment year. 3. The learned Commissioner erred in confirming addition of Rs.62,26,000/- made u/s 68 of the IT Act in respect of in respect of unsecured loans received during the year relevant to the subject assessment year. 4. The learned Commissioner erred in confirming the addition of Rs.55,013/- in respect of disallowance of depreciation. 5. The learned Commissioner erred in confirming the addition of Rs.3,07,500/- in respect of disallowance of ROC fees paid. 6. The learned Commissioner erred in confirming the addition of Rs.7,66,649/- in respect of disallowance u/s 40(a)(ia) of the IT Act. 7. The learned Commissioner erred in disallowing an amount of Rs.7,34,507/- u/s 36(i)(va) of the IT Act in respect of EPF payment. 8. The learned Commissioner erred in confirming the disallowance of Rs.42,27,876/- in respect of preoperative expenses written off. 9. The learned Commissioner erred in confirming the order of the Assessing Officer wherein, an aggregate amount of Rs. 1,38,46,000/- is disallowed. 10. The appellant craves leave to add to, amend or modify the above grounds of appeal either before or at the time of hearing of the appeal, if it is considered necessary.”
The brief facts of the case are that, the assessee is a private limited company, engaged in the business of dealing with food and beverages, filed its Income Tax Return for A.Y. 2016-17 on 30/09/2016 admitting a loss of Rs. 2,87,12,417/-. The case of the assessee was selected for complete scrutiny under CASS and notice u/s 143(2) of the Act was issued to the assessee by the learned Assessing Officer (“Ld. AO”). The Ld. AO completed the assessment on 28.12.2018 by making addition of Rs.
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76,20,000/- & Rs. 62,26,000/- as unexplained cash credits u/s 68 of the Act, disallowed depreciation claim of Rs. 55,013/-, disallowed ROC Fee of Rs. 3,07,500/-, disallowed Rs. 7,66,649/- u/s 40(a)(ia) of the Act, disallowed EPF claim of Rs. 7,34,507/- and disallowed pre-operative expenses of Rs. 42,27,876/-.
Aggrieved with the order of Ld. AO, assessee filed appeal before the Ld.CIT(A). Before the Ld. CIT(A), the assessee remained non respondent to the notices issued by the Ld. CIT(A). Consequently the Ld. CIT(A) dismissed the appeal of the assessee.
Feeling aggrieved with the order of Ld. CIT(A), the assessee is now in appeal before us. The Ld. AR submitted that, the Ld. CIT(A) send the notices at srajaneni@gmail.com, which was the email ID of the previous auditor and the previous auditor did not inform the assessee about the notices issued by Ld. CIT(A). Therefore, the assessee could not file his submission before the Ld. CIT(A) and accordingly, the case of the assessee could not be heard on merits before the Ld. CIT(A). The Ld. AR further submitted that, the assessee does not stand to gain by allowing the appeal to be disposed of without any documentary evidence being produced and it is only due to the reasons beyond
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the control of the assessee, the assessee could prosecute his case before the Ld. CIT(A). By consolidating all the grounds, he further submitted that, given an opportunity, the assessee is now ready to produce all such details and conduct the proceedings diligently and get the matter disposed of on merits. The Ld. AR also submitted that, the assessee has to file some fresh evidences/documents, which could not be filed before the Ld. AO. Therefore, he prayed before the Bench that, the case of the assessee may be set aside to Ld. AO.
Per contra, Ld. DR placed heavy reliance on the orders of the Revenue authorities and submitted that, sufficient opportunity has already been given by the Revenue authorities, but the assessee failed to avail the same. He opposed the grant of further opportunity to the assessee.
We have heard the rival contentions and also gone through the record in the light of the submissions made by either side. It could be seen from the submission of the Ld. AR that, the assessee failed to prosecute his case on merits before the Ld. CIT(A) due the reason out of control of the assessee. Further, it is a fact that the assessee does not stand to gain by not
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producing the necessary information/documents and prosecute his case on merits. Be that as it may, now the assessee is ready to produce all information/documents and get the matter disposed of on merits. The highest that would happen by allowing an opportunity to the assessee is that a cause would be decided on merits. With this view of the matter, we are of the view that fresh opportunity should be given to the assessee and accordingly, we set aside the impugned order and restore the issue to the file of the Ld. AO for passing a fresh order on merits after affording the opportunity of hearing to the assessee. Grounds of appeal are answered accordingly.
In the result, the appeal of the assessee is allowed for statistical purpose. Order pronounced in the open Court on 20th Dec., 2024. Sd/- Sd/- (LALIET KUMAR) (MADHUSUDAN SAWDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER Hyderabad. Dated: 20.12.2024. * Reddy gp Copy of the Order forwarded to : 1. M/s. Bombay Duck Dining Company Pvt. Ltd., Flat No.G1, Plot No.8 & 9, Vasantha Cyberview Apts,
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Madhapur, Hyderabad-500081. 2. ACIT, Circle 1(1), Hyderabaad. 3. Pr.CIT, Hyderabad. 4. DR, ITAT, Hyderabad. 5. Guard file. BY ORDER,
