Alle Shanker, Hyd, Hyderabad V. ITO, Ward-8(3), Hyd, Hyderabad

ITA 1037/HYD/2015

• Counselvise Citation: 103722514 RSA 2015
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-11-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 10-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K E SUNIL BABU
• Assessee Lawyers: S RAMA RAO
• Keywords: Bonafide belief; Assessment record; Condonation of delay
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI RIFAUR RAHMAN, ACCOUNTANT MEMBER ITA.NO.1037 & 1038/HYD/2015 ASSESSMENT YEAR 2005-2006 ALLE SHANKER HYDERABAD 501 359 PAN ADAPA3759R VS. INCOME TAX OFFICER, WARD-8(3) HYDERABAD. (APPELLANT) (RESPONDENT) FOR ASSESSEE : MR. S. RAMA RAO FOR REVENUE : MR. K.E. SUNIL BABU DATE OF HEARING : 20.11.2015 DATE OF PRONOUNCEMENT : 30 .11.2015 ORDER PER SMT. P. MADHAVI DEVI, J.M. BOTH ARE ASSESSEES APPEALS FOR THE A.Y. 2005- 06. ITA.NO.1037/HYD/2015 IS AGAINST THE ORDER OF TH E LD. CIT(A) IN REFUSING TO CONDONE THE DELAY OF 893 DAYS IN FILING THE APPEAL AGAINST THE ASSESSMENT ORDER PASS ED UNDER SECTION 144 OF THE I.T. ACT, WHILE ITA.NO.1038/HYD/2015 IS AGAINST THE ORDER OF THE CI T(A) IN REFUSING TO CONDONE THE DELAY OF 711 DAYS IN FIL ING THE APPEAL AGAINST THE PENALTY ORDER UNDER SECTION 271( 1)(C) OF THE I.T. ACT. THE LD. CIT(A) HAS REFUSED TO CONDONE THE DELAY IN FILING OF BOTH THE APPEALS AND AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE US. 2 ITA.NO.1037/HYD/2015 MR. ALLE SHANKER, HYDERABAD 2. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS ONLY A MATRICULATE AND IS ENGA GED IN THE BUSINESS OF CONTRACTS AND WAS ALSO DERIVING INC OME FROM AGRICULTURE WHICH WAS INCOME OF THE HUF. IT WA S SUBMITTED THAT DURING THE YEAR UNDER CONSIDERATION, ASSESSEE HAD FILED ITS RETURN OF INCOME ON 20.12.20 06 UNDER SECTION 139(4) OF THE I.T. ACT. HOWEVER, THE A.O. ISSUED NOTICE UNDER SECTION 142(1) ON 15.10.2007 REQUIRING THE ASSESSEE TO FILE THE RETURN OF INCOME . AS THE ASSESSEE HAD ALREADY FILED THE RETURN OF INCOME, NO RETURN IN RESPONSE TO THE NOTICE UNDER SECTION 142(1) OF T HE ACT WAS FILED AND WITHOUT TAKING THIS FACT INTO CONSIDE RATION, THE A.O. COMPLETED THE ASSESSMENT EXPARTE UNDER SEC TION 144 OF THE I.T. ACT BY TREATING THE DEPOSITS MADE I NTO THE SAVINGS BANK ACCOUNT OF THE ASSESSEE WITH SBH AS UNEXPLAINED DEPOSITS AND BRINGING IT TO TAX. IT IS STATED BY THE ASSESSEE THAT SINCE HE DID NOT POSSESS KNOWLEDG E IN THE INCOME TAX MATTERS, HE HAS ENTRUSTED HIS TAX MA TTERS TO A CHARTERED ACCOUNTANT, BUT THE CHARTERED ACCOUN TANT DID NOT DISCLOSE THE ASSESSMENT ORDER BEING PASSED. IT WAS SUBMITTED THAT THE ASSESSEE WAS UNDER BONAFIDE BELIEF THAT THE CHARTERED ACCOUNTANT WAS TAKING NECESSARY CARE IN FILING OF THE APPEAL AND THAT THE MATTER WAS SETTLED AND THAT NO FURTHER ACTION WAS NEEDED. IT WAS STATED THAT THE NOTICE ISSUED BY THE A.O. WERE NOT SENT TO THE ADDRESS PROVIDED IN THE RETURN OF INCOME AND THEREFORE, THE ASSESSEE WAS NOT IN THE KNOWLEDGE OF EXISTENCE OF DEMAND PAYABLE. FURTHER, IT WAS SUBMIT TED THAT, IT WAS ONLY WHEN THE DEMAND NOTICE WAS RECEIV ED BY 3 ITA.NO.1037/HYD/2015 MR. ALLE SHANKER, HYDERABAD THE ASSESSEE THAT THE ASSESSEE CONTACTED THE CHARTE RED ACCOUNTANT AND SINCE NO PROPER RESPONSE WAS FORTHCOMING, HE APPROACHED AN ADVOCATE WITH THE ASSESSMENT RECORD WHO ADVISED HIM TO FILE AN APPEAL BEFORE THE CIT(A) AGAINST THE ASSESSMENT ORDER AS W ELL AS THE PENALTY ORDER DATED 08.07.2010. THEREFORE, THE ASSESSEE IMMEDIATELY FILED AN APPEAL BEFORE THE LD. CIT(A) ALONG WITH AN APPLICATION TO CONDONE THE DELAY OF 8 93 DAYS IN FILING OF THE APPEAL AGAINST THE ASSESSMENT ORDER AND 711 DAYS IN FILING OF THE APPEAL AGAINST THE PE NALTY ORDER. HE SUBMITTED THAT THE LD. CIT(A) WITHOUT TAK ING INTO CONSIDERATION THE CONTENTION OF THE ASSESSEE, HAS REJECTED THE PETITION FOR CONDONATION OF DELAY AGAI NST WHICH THE ASSESSEE IS IN APPEAL BEFORE US. LD. COUN SEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BY THE ASSESSEE BEFORE THE LD. CIT(A). 3. LD. D.R. HOWEVER RELIED UPON THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT THE ASSESSEE HAS FAIL ED TO EXPLAIN THE DELAY REASONABLY. 4. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE MATERIAL ON RECORD, WE FIND THAT AGAINST MAINTAINAB ILITY OF THE ASSESSMENT ORDER ASSESSEE HAD TAKEN A GROUND BE FORE THE CIT(A) THAT THE NOTICE UNDER SECTION 142(1) ITS ELF WAS INVALID AS THE ASSESSEE HAD ALREADY FILED THE RETUR N OF INCOME FOR THE RELEVANT ASSESSMENT YEAR. FURTHER, T HE ASSESSEES STATEMENT THAT THE NOTICES WERE NOT SERV ED ON THE ASSESSEE IN THE ADDRESS GIVEN BY HIM IN THE RET URN OF 4 ITA.NO.1037/HYD/2015 MR. ALLE SHANKER, HYDERABAD INCOME HAS ALSO NOT BEEN CONSIDERED BY THE LD. CIT( A). WHEN THE ASSESSEE HAS SOUGHT TO EXPLAIN THE DELAY B Y GIVING REASONS IN THE PETITION, THE LD. CIT(A) ATLE AST OUGHT TO HAVE CONSIDERED THE ACCEPTABILITY OF THE SAME BE FORE DECLINING TO CONDONE THE DELAY. SINCE NO SUCH EXERC ISE HAS BEEN DONE BY THE LD. CIT(A), WE DEEM IT FIT AND PROPER TO REMIT THE ISSUE TO THE FILE OF LD. CIT(A) FOR CO NSIDERATION OF THE APPLICATION FOR CONDONATION OF DELAY AFRESH. NEEDLESS TO MENTION THAT ASSESSEE SHALL BE GIVEN A FAIR OPPORTUNITY OF HEARING AND THE LD. CIT(A) SHALL DEA L WITH THE PETITION IN ACCORDANCE WITH THE LAW AND THE JUD ICIAL PRECEDENTS ON THE ISSUE. 5. IN THE RESULT, APPEALS OF THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30.11.2015. SD/- SD/- (S. RIFAUR RAHMAN) (SMT. P. MADHAVI DEVI) ACOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED 30 TH NOVEMBER, 2015 VBP/- COPY TO : 1. MR. ALLE SHANKER, HYDERABAD. C/O. MR. S. RAMA RAO, ADVOCATE, FLAT NO.102, SHRIYAS ELEGANCE, 3-6-643, STREET NO.9, HIMAYATNAGAR, HYDERABAD 029. 2. THE INCOME TAX OFFICER, WARD - 8(3), HYDERABAD. 3. CIT(A) - 2 , HYDERABAD 4 . PR. CIT - 2 , HYDERABAD 5 . D.R. ITAT A BENCH, HYDERABAD. 6 . GUARD FILE