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आयकर अपीलीय अधिकरण, हैदराबाद पीठ
IN THE INCOME TAX APPELLATE TRIBUNAL
Hyderabad ‘A‘ Bench, Hyderabad
Before Shri R.K. Panda, Vice-President
AND
Shri Laliet Kumar, Judicial Member
Appeal in
ITA No
Appellant Respondent A.Y
218/Hyd/2023 21
st
Century
Investments and
Properties (P) Ltd
Hyderabad
PAN:AAACZ2590H
A.C.I.T. Central
Circle-1
Hyderabad.
2007-08
219/Hyd/2023 -do- -do- -do-
220/Hyd/2023 -do- -do- 2008-09
221/Hyd/2023 -do- -do- -do-
222/Hyd/2023 -do- -do- -do-
223/Hyd/2023 -do- -do- 2009-10
224/Hyd/2023 -do- -do- -do-
225/Hyd/2023 -do- -do- -do-
Assessee by
: Shri P. Murali Mohan Rao, CA
Revenue by:
Smt. T.H. Vijaya Lakshmi, CIT(DR)
Date of hearing: 27/06/2023
Date of pronouncement: 27/06/2023
O R D E R
Per Laliet Kumar, J.M
These are the connected appeals filed by the assessee
directed against the common order dated 13.02.2023 of the
learned CIT (A)-11, Hyderabad relating to A.Ys.2007-08 to 2009-
10 respectively.
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2. As all the captioned appeals are related to one
assessee, we take ITA No.218/Hyd/2023 for the A.Y 2007-08 as
the lead appeal.
3. Though, the assessee has raised as many as 13
grounds, except the following two grounds, the remaining grounds
are technical and general in nature, which requires no
adjudication.
“1. The learned. CIT(A) ought to have appreciated that the
learned Assessing Officer erred in making the disallowance
of Rs.2,28,701/- towards sale tax payable, without
appreciating the actual facts of the case.
2. The ld.CIT(A) ought to have appreciated that the ld.AO
erred in making the addition of Rs.1,08,62,908/- towards
unexplained expenditure by taking an estimation on the total
expenses made by the assessee during the AY under
consideration.”
4. The brief facts of the case are that assessee is a
company filed its return of income for A.Y. 2007-08 admitting
total income of Rs.78,21,140/- but did not file its return of
income for A.Ys. 2008-09 and 2009-10. A search operation was
carried out in the case of the Director of the assessee Sri A.
Ramakrishna in 17.09.2008 and simultaneous survey operation
was conducted in the case of the assessee. Notices u/s 153C
were issued to the assessee and the assessee did not file the
return of income in response to the said notices. Subsequently,
the Assessing Officer had completed the assessment and also
passed the penalty orders, the details of which read as under :
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Assessment orders:
Sl.No. AY Order u/s` Date of the order Assessed
income in Rs.
1 2007-08 153C r.w.s. 144 30.12.2010 1,89,03,749
2 2008-09 153C r.w.s. 144 30.12.2010. 6,10,56,570
3 2009-10 144 30.12.2010 4,37,21,247
Penalty orders :
Sl.No. AY Order u/s` Date of the order Assessed
income in Rs.
1 2007-08 271(1)(c) 23.06.2011 63,63,002
2 2008-09 271AAA 23.06.2011 35,07,378
3 2008-09 271(1)(c) 23.06.2011 88,31,547
4 2009-10 271AAA 23.06.2011 5,43,567
5 2009-10 271(1)(c) 23.06.2011 1,31,81,229
5. Feeling aggrieved by the order passed by the assessing
officer, assessee filed appeal before the Ld. CIT(A), who dismissed
the appeal of assessee in limine on account of inordinate delay by
holding as under :
“6..........
In the present case, the appellant could have very well
avoided the delay by exercising of due care and attention at
least after the month of June, 2011 when the penalty orders
were received. Therefore, there exist no bonafide reasons
and no sufficient and reasonable cause for the delay of an
inordinate period of more than 10 years and applying the
principle laid down by the Hon’ble Courts in the aforesaid
decisions, the delay of more than 10 years in filing the
appeal cannot be condoned. Accordingly, all the appeals
filed by the appellant are dismissed as barred by limitation.”
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6. Before us, ld. AR had submitted that the learned CIT
(A) decided the appeal without affording an opportunity of hearing
to the assessee as no date of hearing was fixed by the learned CIT
(A) before deciding the appeals. He drew our attention to the order
passed by the learned CIT(A) on 13.2.2023 whereby the learned
CIT (A) dismissed the appeal of the assessee for the reasons
mentioned at pages 35 to 46 of the order. It was submitted by the
learned AR that the assessee is a company on which the notice
u/s 153C was issued and served on 12.09.2009 and thereafter,
the assessee could not participate in the assessment proceedings,
hence, the Assessing Officer had passed the assessment order u/s
144 of the Act on 30.12.2010. It was further submitted that the
assessment order was not traceable, therefore, assessee had filed
the appeal on the basis of the photocopy of the order, before the
learned CIT (A) on 13.6.2022. It was submitted that there was an
inordinate delay of 4151 days in filing of the appeal for the A.Y
2007-08 and more 3975 days delay with respect to other appeals.
It was submitted that the assessee was not functional and name
of the assessee was struck down. It was submitted that the
learned CIT (A) should have condoned the delay in prosecuting
the appeals and should have decided the matter on merit.
7. On the other hand, the learned DR vehemently
submitted that the notice u/s 153C was duly served on
12.09.2009 on the assessee and it was incumbent duty of the
assessee to appear in the assessment proceedings and file return
of income. However, no plausible reasons were given for non-
appearance or non-filing of return of income by the assessee
before the Assessing Officer. Further it was submitted that the
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notice u/s 142(1) was served through affixture as the main
Directors of the company were untraceable and the company
remained unrepresented despite service of notice u/s 153C. In
the above circumstances, the Assessing Officer had completed the
assessment u/s 144 of the Act.
8. Further, it was submitted that the learned CIT (A) had
elaborately discussed the facts of the case in Para 6 onwards and
more particularly at page 40, it was submitted that the assessee
is taking contradictory stand as on the one hand assessee is
saying that “order was not traceable” whereas on some places, it
was mentioned that the notice was not served on the assessee.
It was submitted that it is a fit case for dismissing the
condonation of delay application and the order of the learned CIT
(A) is in accordance with law. It was further submitted that the
contention of the assessee that the learned CIT (A) had decided
the issue without affording opportunity of being heard and fixed
the dates is preposterous. He drew our attention to Col.7 at page
1 of the order wherein against the dates mentioned, it was
mentioned that as per the order sheet notings. It was submitted
that if the contention of the assessee is found to be wrong, then
suitable action be initiated against it.
9. In rebuttal, the learned AR vehemently submitted that
no date of hearing was fixed by the learned CIT (A) and therefore,
the assessee was not represented in the proceedings, hence,
order of ld.CIT(A) is non-est in the eyes of law.
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10. We have heard the rival arguments and perused the
material available on record. Admittedly, the learned CIT (A) in the
order mentioned that the date of hearing is “as per the order sheet
noting”. However, in 46 pages order, we are not able to lay our
own hand any of the date of hearing fixed by the learned CIT (A)
for adjudication after serving the notice of haring. Further, we are
not able to find out as to when the notice of hearing was issued to
assessee and when it was served on the assessee. The date of
issuance and service of notice during the appellate proceedings
are conspicuously missing and therefore, it is difficult to accept
the contention of the assessee or the learned LD. DR. In the light
of the above, we are of the opinion that it is necessary for the
learned CIT (A) to mention atleast the date of issuance of the
notice for appellate proceedings and service thereof in the body of
the order. Since nothing has been mentioned in the order,
therefore, we are left with no option but to uphold the salutary
principle of judicial/quasi judicial adjudication, that no person
should be condemned without providing an opportunity of
hearing.
11. In the light of the above, we deem it proper to remand
back the matter to the file of the learned CIT (A) with a direction
to decide the appeal afresh. Since there is a dispute about non-
grant of opportunity, we fix the date of hearing as 20.07.2023.
It is expected that the learned CIT (A) shall decide the appeal and
the grounds raised therein afresh and shall pass a reasoned
speaking order. The assessee is also directed to appear on the
date fixed on 20.07.2023 and participate in appellate proceedings.
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Needless to say we have not adjudicated any of the grounds raised
by the assessee nor we have condoned the delay in filing the
appeals before the learned CIT (A). The learned CIT (A) shall
decide the issue afresh after affording opportunity of being heard
to the assessee within a reasonable period of six months. Thus,
the appeal of the assessee is allowed for statistical purposes.
12. In the result, appeal of assessee in ITA
No.218/Hyd/2023 is allowed for statistical purposes.
13. As far as the other appeals i.e., ITA Nos.219 to
225/Hyd/2023 are concerned, in view of the submission of both
the parties that the issues raised in A.Y. 2007-08 are identical to
the other assessment years, we for the reasons stated hereinabove
while deciding the appeal in ITA 218/Hyd/2023 and for similar
reasons, allow the other appeals for statistical purposes.
14. In the result, the appeals of assessee in ITA Nos.218 to
225/Hyd/2023 are allowed for statistical purposes.
15. To sum up, all the appeals of assessee are allowed for
statistical purposes. A copy of the same may be placed in
respective case files.
Order pronounced in the Open Court on 27
th
June, 2023.
Sd/- Sd/-
(R.K. PANDA)
VICE-PRESIDENT
(LALIET KUMAR)
JUDICIAL MEMBER
Hyderabad, dated 27
th
June, 2023.
Vinodan/TYNM/SPS
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Copy to:
S.No Addresses
1 M/s. 21
st
Century Investments & Properties (P) Ltd C/o P. Murali & Co.
C.A 6-3-655/2/3 Somajiguda, Hyderabad 500082
2 ACIT Central Circle-1 Hyderabad
3 Pr. CIT, Central, Hyderabad
4 DR, ITAT Hyderabad Benches
5 Guard File
By Order