M/s. Demi Realtors v. Asstt. Commissioner of Income-tax, Circle-8(1), Hyderabad
[Citation -2016-LL-0930-105]

Citation 2016-LL-0930-105
Appellant Name M/s. Demi Realtors
Respondent Name Asstt. Commissioner of Income-tax, Circle-8(1), Hyderabad
Court ITAT-Hyderabad
Relevant Act Income-tax
Date of Order 30/09/2016
Assessment Year 2008-09
Judgment View Judgment
Keyword Tags search and seizure operation • condonation of delay • seized cash
Bot Summary: The CIT Page 1 of 4 ITA No 649 of 2013 Demi Realtors Hyderabad refuesed to admit the appeal, against which the assessee preferred an appeal before the ITAT, in ITA No.334/Hyd/2011. During the appellate proceedings, the assessee argued that all taxes had been paid and the conditions mentioned in section 249 of the I.T. Act had been fulfilled by the assessee. The CIT observed that the assessee has not been able to properly explain the delay in filing of the appeal. At the time of hearing, the learned Counsel for the assessee submitted that without prejudice to its contentions before the CIT, the assessee has now paid a further sum of Rs.2.00 lakhs towards the shortfall in the admitted tax and prayed that the appeal may be restored to the file of the CIT for Page 2 of 4 ITA No 649 of 2013 Demi Realtors Hyderabad adjudication on merits. Having regard to the rival contentions and the material on record, we find that under sub section of section 249 of the I.T. Act, an assessee is required to pay the admitted tax before filing of the appeal before the CIT. Admittedly, the assessee has failed to comply with this condition. After filing of the appeal, assessee has sought adjustment of the seized cash towards the shortfall of the tax demand, but since the seized cash has already been adjusted towards the pending tax demand, the same was not adjusted and the shortfall continued to remain. Since the assessee has paid the balance of the tax subsequently and respectfully following the decision of the Coordinate Bench in the case of T. Kishan vs. ACIT, we deem it fit and proper to remand the issue to the file of CIT with a direction to verify the payment of admitted tax by the assessee; and after considering the application for condonation of delay to be filed by the assessee for the delay upto the date of payment of the total of the admitted tax, the CIT shall consider the same in accordance with the law on merits and if such delay is condoned by the CIT, then the CIT shall adjudicate the appeal of the assessee on merits.


ITA No 649 of 2013 Demi Realtors Hyderabad IN INCOME TAX APPELLATE TRIBUNAL Hyderabad Bench, Hyderabad Before Smt. P.Madhavi Devi, Judicial Member & Shri S.Rifaur Rahman, Accountant Member ITA No.649/Hyd/2013 (Assessment Year: 2008-09) M/s. Demi Realtors Asstt. Commissioner of Hyderabad Vs. Income Tax, Circle 8(1) PAN: AAFFD 9401 P Hyderabad (Appellant) (Respondent) For Assessee : Shri J. Prabhakar For Revenue : Shri V. Srinivas, DR Date of Hearing : 2.8.16 Date of Pronouncement : 30.9.16 ORDER Per Smt. P. Madhavi Devi, J.M. This is assessee s appeal for A.Y 2008-09. 2. Brief facts of case are as under:- 3. assessee is engaged in real estate business. There was search and seizure operation u/s 132 of I.T. Act at business premises of assessee on 17.10.2007. assessee filed its return of income for A.Y 2008-09 on 7.7.2009 declaring income of Rs.2,01,42,190. During assessment proceedings u/s 143(3) of Act, AO made certain disallowances and consequential additions to returned income of assessee. Aggrieved by assessment order, assessee filed appeal before CIT (A). During appellate proceedings, CIT(A) observed that assessee has not paid admitted tax before filing of appeal. Therefore, CIT (A) Page 1 of 4 ITA No 649 of 2013 Demi Realtors Hyderabad refuesed to admit appeal, against which assessee preferred appeal before ITAT, in ITA No.334/Hyd/2011. ITAT vide orders dated 20.01.2012, remanded matter back to file of CIT (A) with direction to verify whether admitted taxes of Rs.77,99,676/- have been paid and admitted taxes have been paid in full, to compute delay in filing of appeal upto date of payment of all taxes and then to consider reasons for delay on merits and to decide on merits. CIT (A) considered that admitted tax amount was Rs.77,99,676 out of which, assessee has paid sum of Rs.76,00,328 only and hence, there is shortfall of Rs.1,99,348. During appellate proceedings, assessee argued that all taxes had been paid and conditions mentioned in section 249 of I.T. Act had been fulfilled by assessee. It was also submitted that assessee had given in writing to AO to adjust sum of Rs.2.00 lakhs which had been seized during search and seizure and lying in PD a/c towards tax due from assessee. However, CIT (A) observed that sum of Rs.2.00 lakhs which had been lying in PD a/c of CIT, had been adjusted against shortfall in tax demand on 25th April, 2010 and not towards admitted tax and therefore, appeal cannot be admitted. CIT (A) observed that assessee has not been able to properly explain delay in filing of appeal. Therefore, appeal of assessee was dismissed in limini. Aggrieved, assessee is in further appeal before us. 4. At time of hearing, learned Counsel for assessee submitted that without prejudice to its contentions before CIT (A), assessee has now paid further sum of Rs.2.00 lakhs towards shortfall in admitted tax and prayed that appeal may be restored to file of CIT (A) for Page 2 of 4 ITA No 649 of 2013 Demi Realtors Hyderabad adjudication on merits. In support of its contentions that defects arising due to non compliance of section 249(4) is curable one, he placed reliance upon decision of coordinate bench of this Tribunal in case of T. Kishan v. ACIT, reported in (2012) 23 taxmann.com 383 (Hyd.). copy of said order is filed before us. learned DR however, objected to remand of appeal to file of CIT (A). 5. Having regard to rival contentions and material on record, we find that under sub section (4) of section 249 of I.T. Act, assessee is required to pay admitted tax before filing of appeal before CIT (A). Admittedly, assessee has failed to comply with this condition. After filing of appeal, assessee has sought adjustment of seized cash towards shortfall of tax demand, but since seized cash has already been adjusted towards pending tax demand, same was not adjusted and shortfall continued to remain. Since assessee has paid balance of tax subsequently and respectfully following decision of Coordinate Bench in case of T. Kishan vs. ACIT (Supra), we deem it fit and proper to remand issue to file of CIT (A) with direction to verify payment of admitted tax by assessee; and after considering application for condonation of delay to be filed by assessee for delay upto date of payment of total of admitted tax, CIT (A) shall consider same in accordance with law on merits and if such delay is condoned by CIT (A), then CIT (A) shall adjudicate appeal of assessee on merits. Needless to mention that assessee shall be given fair opportunity of hearing on all above issues. Page 3 of 4 ITA No 649 of 2013 Demi Realtors Hyderabad 6. In view of same, assessee s appeal is treated as allowed for statistical purposes. Order pronounced in Open Court on 30th September, 2016. Sd/- Sd/- (S. Rifaur Rahman) (P. Madhavi Devi) Accountant Member Judicial Member Hyderabad, dated 30th September, 2016. Vnodan/sps Copy to: 1. M/s. Demi Realtors, 8-3-167/8/133/301, Plot No.133, Lalitanilayam Apartments, Rajeevnagar, Kalyannagar, Hyderabad 2. Asstt. Commissioner of Income Tax, Circle 8(1) IT Towers, AC Guards, Hyderabad 3. CIT(A) - III Hyderabad 4. CIT II Hyderabad 5. DR, ITAT, Hyderabad 6. Guard File By Order Page 4 of 4 M/s. Demi Realtors v. Asstt. Commissioner of Income-tax, Circle-8(1), Hyderabad
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