Forbes Aquamall Limited,, Hyderabad vs Assessee

This is an appeal by assessee against the order of Commissioner of Income Tax(Appeals)-Shillong dated 30-03-2013. Assessee has raised the following grounds:

"2. The learned CIT(A) though was informed of the change of jurisdiction of the assessee from Meghalaya to Hyderabad erred in deciding the appeal in spite of being ceased of jurisdiction.

:- 2 -: I.T.A. No. 1055/Hyd/2013 Forbes Aquamall Ltd.,- presently M/s.Aquamall Water Solutions Ltd.,

3. The learned CIT(A) erred in holding that the assessee is not engaged in manufacturing activity without appreciating the fact the on same facts in other cases and also in the assessee's own case the same is being accepted as manufacturing activity and deduction u/s.80-IB and 80-IC being allowed.

4. The learned CIT(A) erred in observing impliedly that it is required to have plant and machinery of substantial worth to be in a position to get engaged in manufacturing and holding that what the assessee did is only assembling which does not amount to manufacturing and thereby erred in confirming the order of the AO denying deduction u/s.80-IC & 80-IB".

2. It was submitted that assessee-company M/s.Forbes Aquamall Ltd., has since been merged with M/s.Aquamall Water Solutions Ltd., the CIT-Shillong vide his order dt.16-11-2012 exercising his powers conferred u/s.127(2) of the Income Tax Act (Act) has transferred assessee's file from DCIT, Circle-Shillong to DCIT, Circle-1(1), Hyderabad. He also marked a copy to the CIT(A) with a reference to pending appellate proceedings for the AY.2008-09. However, the Ld.CIT(A) vide his order dt.30-03-2013 decided the appeal ex-parte after discussing the claim of deduction u/s.80IB/80IC on merits and dismissed the appeal preferred by assessee. It was the contention of assessee that CIT(A)-Shillong does not have a jurisdiction to decide the appeal.

3. We have heard the Ld.Counsel and Ld.DR and perused the Paper Book placed on record including the order of merger issued by the Hon'ble High Court of Andhra Pradesh between assessee and M/s.Aquamall Water Solutions Ltd.,

4. As per record, assessee at the time of transfer by CIT-Shillong to Hyderabad, the company has not merged with M/s.Aquamall Water Solutions Ltd., even though there was change of jurisdiction from :- 3 -: I.T.A. No. 1055/Hyd/2013 Forbes Aquamall Ltd.,- presently M/s.Aquamall Water Solutions Ltd.,

Shillong to Hyderabad, Ld.CIT(A) has not noticed it and considered the appeal ex-parte, qua assessee. The notices issued seems to have been sent to old address. Subsequently, assessee got merged with M/s.Aquamall Water Solutions Ltd. In view of the above facts, we are of the opinion that the order by CIT(A) should be set aside and matter has to be restored to the file of CIT(A) at Hyderabad having jurisdiction so that assessee's contentions can be heard afresh. We also notice that some of the issues raised by the Assessing Officer that assessee do not have any assets/machinery also require examination.

5. In view of this, without considering the grounds raised in Ground No.3 and 4, we hereby set aside the order of CIT(A)- Shillong and restore the appeal to be heard afresh by the CIT(A) at Hyderabad.

6. With these directions, assessee's grounds are allowed for statistical purposes.

Order pronounced in open Court on 20th February, 2015.

Sd/- Sd/- (D. MANMOHAN) (B. RAMAKOTAIAH) VICE PRESIDENT ACCOUNTANT MEMBER

Hyderabad, Dated 20th February, 2015

TNMM :- 4 -: I.T.A. No. 1055/Hyd/2013 Forbes Aquamall Ltd.,- presently M/s.Aquamall Water Solutions Ltd.,

Copy to :

1. Forbes Aquamall Ltd., Presently M/s.Aquamall Water Solutions Ltd., C/o. Shri K.Vasantkumar & A.V.Raghu Ram, Advocates, 610, 6th Floor, Babukhan Estate, Basheerbagh, Hyderabad-1.

2. The Deputy Commissioner of Income Tax, Circle-1(1), Hyderabad.

3. CIT(A), Shillong.

4. CIT-Shillong.

5. D.R. ITAT, Hyderabad.