SUKHIBHAVA BUILDERS AND DEVELOPERS PRIVATE LIMITED,KUKATPALLY vs. ACIT, CIRCLE 4(1), VISHAKAPTANAM
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Income Tax Appellate Tribunal, VISAKHAPATNAM BENCH, VISAKHAPATNAM
Before: SHRI DUVVURU RL REDDY, HON’BLE & SHRI S BALAKRISHNAN, HON’BLE
Per Shri Duvvuru RL Reddy, Judicial Member :
Condonation of Delay : This appeal is filed by the assessee against the order of Commissioner of Income Tax (Appeals) [CIT(A)], National Faceless Appeal Centre (NFAC) in DIN & Order No.ITBA/NFAC/S/250/2022- 23/1050655101(1) dated 12.03.2023, arising out of order passed u/s 143(3) of the Income Tax Act, 1961 (in short ‘Act’) dated 13.03.2015 for 2 I.T.A. No.239/Viz/2023, A.Y.2012-13 Sukhibhava Builders and Developers Pvt Ltd.,Hyderabad
the Assessment Year (A.Y.) 2012-13 with the delay of 135 days. The assessee filed a petition for condonation of delay, submitting that the appeal against the order of the Ld.CIT(A) ought to have been filed on or before 10.05.2023, but the appeal could be filed only on 25.09.2023 with the delay of 135 days due to the fact that the assessee’s appeal before the Ld.CIT(A) was dismissed ex-parte on 12.03.2023 on the ground of non- compliance and the assessee company came to the know of this fact when it was noticed by the statutory auditors of the company on the income tax portal that the NFAC has dismissed the appeal stating that there is no representation from the assessee. The assessee company was not aware of the notices issued by the department and it was under the bonafide impression that the chartered accountant appointed by it would take care of the matter and do the needful. Since the company lost its trust factor on the chartered accountant appointed, the assessee immediately approached a competent professional to file appeal before ITAT with a prayer for condonation of delay in filing the appeal. The assessee submitted that it was prevented by reasonable and sufficient cause from filing the appeal on time. Therefore, in the interest of equity and justice, the assessee pleaded to condone the delay of 135 days and admit the 3 I.T.A. No.239/Viz/2023, A.Y.2012-13 Sukhibhava Builders and Developers Pvt Ltd.,Hyderabad
appeal for hearing, which would otherwise cause undue hardship to the assessee company.
We have heard the Ld.AR gone through the condonation petition filed by the assessee. It is evident from the records that the order of the Ld.CIT(A) was passed on 12.03.2023 and the assessee ought to have filed appeal before the Tribunal on or before 11.05.2023, but the assessee could file appeal only on 23.09.2023 with the delay of 135 days. We find that there is reasonable cause for filing the appeal belatedly. We, therefore, condone the delay in the interest of justice and admit the appeal for hearing.
Brief facts of the case are that the assessee company registered under the Companies Act, 1956 engaged in the business of construction of apartments, filed it’s return of income for the A.Y.2012-13 on 01.10.2012, declaring total income of Rs.26,25,930/-. Subsequently, the case was selected for scrutiny under CASS and statutory notices u/s 143(2) and 142(1) of the Act were issued and served on the assessee. The Assessing Officer (AO) assessed the income of the assessee at Rs.1,55,46,430/- as against the income returned by the assessee at Rs.26,25,930/- and passed assessment order u/s 143(3) of the Act dated 13.03.2015. 4 I.T.A. No.239/Viz/2023, A.Y.2012-13 Sukhibhava Builders and Developers Pvt Ltd.,Hyderabad
Aggrieved by the order of the AO, the assessee preferred an appeal before the CIT(A) and the Ld.CIT(A) dismissed the appeal of the assessee ex-parte due to non compliance, holding that the assessee is not interested in prosecuting the appeal, despite providing multiple opportunities to submit the documents and make submissions in response to the appeal filed.
Aggrieved by the order of the Ld.CIT(A), the assessee preferred an appeal before the Tribunal by raising the following grounds of appeal :
The learned Commissioner of Income Tax(Appeals)-NFAC (“the Ld.CIT(A)”) failed to appreciate that the assessee company had filed detailed written submissions along with relevant documents physically before the CIT(A)-2, Visakhapatnam on 22.09.2016 which forms part of the appeal records. Therefore erred in dismissing the appeal without adjudicating on the merits of the case stating that his office has not received any information or document so as to make a judgement on merits.
The order of the Ld.CIT(A) in confirming the addition of Rs.37,84,000 as income from undisclosed sources is unsustainable both in law and in facts.
The Ld.CIT(A) failed to appreciate that the amount of Rs.37,84,000 represents outstanding amount due to Sundry creditors which was later paid to them in subsequent years. Therefore, erred in confirming the addition of the same as income from undisclosed sources.
The order of the Ld.CIT(A) in confirming the addition of Rs.91,36,503 being loan received from M/s Sukhibhava Real Estate Private Limited (a group concern having common shareholders) as 5 I.T.A. No.239/Viz/2023, A.Y.2012-13 Sukhibhava Builders and Developers Pvt Ltd.,Hyderabad
deemed dividend in the hands of assessee company is unsustainable both in law and on facts.
The appellant craves leave to add to, amend alter or delete all or any of the foregoing grounds of appeal.
The only contention of the Ld.AR is that the Ld.CIT(A) is not justified in dismissing the appeal of the assessee ex-parte, due to the fact that though the assessee failed to prosecute the appeal before the Ld.CIT(A) the assessee had filed detailed written submissions along with relevant documents physically before the CIT(A)-2,, Visakhapatnam on 22.09.2016 which forms part of the appeal records. The Ld.AR contended that the Ld.CIT(A) without considering the same and adjudicating the appeal on merits of the case, dismissed the appeal of the assessee, which is against law. He, therefore, pleaded to afford another opportunity of being heard before the Ld.CIT(A) to substantiate it’s case in the interest of justice.
Per contra, the Ld.DR relied on the order of the Ld.CIT(A) and submitted that the assessee was given multiple opportunities to submit documents and make submissions in response to the appeal filed, but the assessee failed to avail the same. She, therefore, pleaded to uphold the same and dismiss the appeal of the assessee.
6 I.T.A. No.239/Viz/2023, A.Y.2012-13 Sukhibhava Builders and Developers Pvt Ltd.,Hyderabad
We have heard both the parties and perused the material available on record. It is undisputed fact that the appeal of the assessee was dismissed ex-parte before the Ld.CIT(A) due to non prosecution of the appeal by the assessee with cogent material evidences in support of the grounds of appeal raised. The contention of the Ld.AR is that the written submissions along with relevant documents filed physically before the CIT(A)-2, Visakhapatnam on 22.09.2016 were not considered and the appeal was dismissed ex-parte by the Ld.CIT(A) against law. However, in view of the foregoing facts and circumstances of the case, we find that the assessee was prevented by a reasonable cause for not prosecuting the appeal before the Ld.CIT(A). The Ld.AR pleaded to afford one more opportunity of being heard before the Ld.CIT(A) or else it would cause irreparable loss to the assessee. Hence, keeping in view the principles of natural justice, we are inclined to remit the matter back to the file of the Ld.CIT(A) and direct the Ld.CIT(A) to afford the assessee, another opportunity of being heard before the Ld.CIT(A). The assessee is also directed to adhere to the notices issued by the Ld.CIT(A) and furnish relevant material evidences to substantiate it’s case. Accordingly, the grounds filed by the assessee are allowed for statistical purpose.
7 I.T.A. No.239/Viz/2023, A.Y.2012-13 Sukhibhava Builders and Developers Pvt Ltd.,Hyderabad
In the result, appeal of the assessee is allowed for statistical purpose.
Order pronounced in the open court on 30th January,2024. (एस बालाकृष्णन) (दुव्वूरु आर.एल रेड्डी) (S.BALAKRISHNAN) (DUVVURU RL REDDY) लेखा सदस्य/ACCOUNTANT MEMBER न्याधयक सदस्य/JUDICIAL MEMBER Dated : 30.01.2024 L.Rama, SPS
आदेश की प्रतितिति अग्रेतिि/Copy of the order forwarded to:- 1. ननधधाऩरती/ The Assessee– Sukhibhava Builders and Developers Pvt. Ltd H.No.MIG-111, Ground Floor, Road No.1, KPHP Colony, Kukatpally, Hyderabad 2. रधजस्व/The Revenue – The Asst.Commissioner of Income, Circle-4(1), 3rd Floor, Direct Taxes Building, MVP Colony, Visakhapatnam
The Principal Commissioner of Income Tax, Visakhapatnam 4. नवभधगीय प्रनतनननध, आयकर अपीलीय अनधकरण, नवशधखधपटणम / DR,ITAT, Visakhapatnam 5..गधर्ा फ़धईल / Guard file आदेशधनुसधर / BY ORDER
Sr. Private Secretary ITAT, Visakhapatnam
