Sri M Venkat Reddy, Hyderabad V. ITO., Ward-1, Nalgonda, Nalgonda

ITA 1526/HYD/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87307 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 05-02-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 29-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITRA
• Assessee Lawyers: A V RAGHURAM
• Keywords: Principle of natural justice; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA.NO.1526/HYD/2014 ASSESSMENT YEAR 2009-2010 MR. M. VENKAT REDDY PROP. URVASI WINES, SHALIGOURARAM (V) NALGONDA DIST., PAN ANVPM2653D VS. THE INCOME TAX OFFICER WARD-1 NALGONDA. (APPLICANT) (RESPONDENT) FOR ASSESSEE : MR. A.V. RAGHURAM FOR REVENUE : MR. RAJAT MITRA DATE OF HEARING : 05.02.2015 DATE OF PRONOUNCEMENT : 13.02.2015 ORDER PER B. RAMAKOTAIAH, A.M. THIS IS AN ASSESSEES APPEAL AGAINST THE ORDER OF LD. CIT(A)-VI, HYDERABAD DATED 25.09.2012 REJECTING ASSESSEES APPEAL IN LIMINE . 2. ASSESSEE HAS FILED THE MEMORANDUM OF APPEAL BEFORE ITAT ON 29.09.2014 AND IN FORM NO.36, AGAINS T THE DATE OF COMMUNICATION OF THE ORDER APPEALED AGAINST IN COLUMN NO.9, HE HAS NOT MENTIONED DATE OF COMMUNICA TION OF THE ORDER AND MENTIONED ONLY YEAR 2014. WHEN ASKED FOR CONDONATION OF DELAY IN FILING THE APPEAL, ASSESSEE IN THE CONDONATION PETITION SEEKING CONDONATION OF 644 DAY S DELAY SUBMITTED IN AN AFFIDAVIT THAT ASSESSEE WAS NOT AWA RE ABOUT THE DISMISSAL OF THE APPEAL BY THE LD. CIT(A) AND H E HAS COME TO KNOW ONLY WHEN THE A.O. TRIED TO COLLECT THE TAX ES THEREIN. 2 ITA.NO.1526/HYD/2014 MR. M. VENKAT REDDY, NALGONDA ON RECEIPT OF DUPLICATE COPIES FROM THE A.O. APPEAL WAS FILED IMMEDIATELY WITHOUT ANY FURTHER DELAY. LATER ON ASS ESSEES COUNSEL APPROACHED THE LD. CIT(A) TO ASCERTAIN THE DATE OF SERVICE OF THE ORDER AS PER THE RECORDS OF LD. CIT( A). IT WAS SUBMITTED THAT THEY COULD ONLY GATHER THAT THE ORDE R WAS DISPATCHED BY POST ON 23.10.2012 BUT THERE IS NO EV IDENCE IN THE FILE THAT IT WAS SERVED ON ASSESSEE OR COUNSEL. THEREFORE, ASSUMING BUT WITHOUT ADMITTING THAT THE ORDER WAS D ISPATCHED ON 23.10.2012, IT WAS CONSIDERED THAT THE ORDER WAS DEEMED TO HAVE SERVED WITHIN THREE DAYS I.E., ON 26.10.2012 A ND CONSIDERING THE TIME AVAILABLE FOR FILING THE APPEA L, ASSESSEE FILED THE PRESENT CONDONATION PETITION CONSIDERING RESULTANT DELAY OF 644 DAYS. IT WAS FURTHER SUBMITTED THAT TH E DELAY, IF ANY, IN FILING THE APPEAL IS NEITHER WILLFUL NOR IN TENTIONAL BUT IS ON THE REASON THAT THE ORDER OF LD. CIT(A) WAS NOT SERVED ON ASSESSEE. SINCE, ASSESSEE IS INTERESTED IN PURSUING THE APPEAL, IT WAS REQUESTED THAT CONDONATION OF DELAY, IF ANY, MAY BE GRANTED. 3. AFTER CONSIDERING THE OBJECTIONS OF THE LEARNED D.R. WE ARE OF THE OPINION THAT THE DELAY IN FILING THE APPEAL, IF ANY, HAS TO BE CONDONED. ACCORDINGLY, WE ARE ADMITTING T HE APPEAL AND DECIDE THE ISSUE. 4. COMING TO THE ISSUES RAISED IN APPEAL, ASSESSEE IS A WINE DEALER AND A.O. MADE VARIOUS ADDITIONS AFTER REJECTING BOOKS OF ACCOUNTS AND ESTIMATING THE SALES BY TAKIN G 27% MARGIN ON PURCHASES AND ESTIMATING DEEMED SALES. AS AGAINST THE TOTAL INCOME RETURNED AT RS.3,31,440, TOTAL INC OME WAS DETERMINED AT RS.27,41,060. ASSESSEE PREFERRED AN A PPEAL BEFORE THE LD. CIT(A) WITH A DELAY. IT WAS THE CONT ENTION OF ASSESSEE THAT DELAY WAS ABOUT 39 DAYS FOR WHICH CON DONATION 3 ITA.NO.1526/HYD/2014 MR. M. VENKAT REDDY, NALGONDA WAS SOUGHT, WHEREAS AS PER THE LD. CIT(A) THE DELAY WAS ABOVE 130 DAYS. EVEN THOUGH TWO OPPORTUNITIES WERE GIVEN TO ASSESSEE TO EXPLAIN, ACCORDING TO THE LD. CIT(A), A SSESSEE DID NOT FURNISH ANY EXPLANATION AND THEREFORE, IN VIEW OF THE PERSISTENT FAILURE OF ASSESSEE TO SUBMIT ANY EXPLAN ATION LEADING TO REASONABLE PRESUMPTION THAT ASSESSEE HAD NO REASON NOR EXPLANATION FOR THE DELAY, THE APPEAL WA S TREATED AS DISMISSED IN LIMINE. 5. IT WAS ASSESSEES CONTENTION THAT LD. CIT(A) ER RED IN DISMISSING THE APPEAL IN LIMINE AND THAT PROPER OPPORTUNITY WAS NOT GIVEN TO ASSESSEE VIOLATING THE PRINCIPLES OF NATURAL JUSTICE. FURTHER, SINCE EXPLANATION WAS ALREADY FIL ED WITH RESPECT TO DELAY BEFORE THE LD. CIT(A), THE LD. CIT (A) OUGHT TO HAVE DECIDED THE APPEAL ON MERITS INSTEAD OF DISMIS SING THE APPEAL IN LIMINE . IT WAS FURTHER SUBMITTED THAT COUNSEL WHO REPRESENTED ASSESSEE HAD NOT INFORMED ASSESSEE ABOU T HEARING OF THE APPEAL AND THEREFORE, LD. CIT(A) OUGHT TO HA VE SENT NOTICE OF HEARING TO THE ASSESSEE DIRECTING HIM TO FURNISH HIS SUBMISSIONS IF ANY, WHEN THE COUNSEL DID NOT RESPON D TO THE NOTICE. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF ASSESSEE S COUNSEL AND OBJECTIONS OF THE LEARNED D.R. AS FAR A S GROUND NO.3 IS CONCERNED, ASSESSEE IN FACT IN FORM NO.35 M ENTIONED HIS AUTHORISED REPRESENTATIVES ADDRESS ONLY FOR SE RVICE OF NOTICE. THEREFORE, IT CANNOT BE STATED THAT LD. CIT (A) ERRED IN NOT SERVING NOTICE ON ASSESSEE WHEN ASSESSEE PREFER RED TO GET THE NOTICE SERVED TO THE ADDRESS OF THE AUTHORISED REPRESENTATIVE AS STATED IN FORM 35. AS SUCH, THE F AULT CANNOT BE ATTRIBUTED TO THE O/O. LD. CIT(A) AS NOTICES WER E SENT TO THE GIVEN ADDRESS. THEREFORE, GROUND NO.3 DOES NOT HAVE ANY MERIT. 4 ITA.NO.1526/HYD/2014 MR. M. VENKAT REDDY, NALGONDA 7. COMING TO GROUND NOS. 1 AND 2, WE ARE OF THE OPINION THAT LD. CIT(A) SHOULD NOT HAVE DISMISSED T HE APPEAL IN LIMINE WITHOUT INFORMING OBJECTION ABOUT NUMBER OF DAYS DELAY AND EXPLANATION FROM ASSESSEE. ASSESSEE IN FA CT, FILED CONDONATION FOR 39 DAYS AND LD. CIT(A) NOTICED THAT ACTUAL DELAY WAS ABOUT 130 DAYS. WHY THERE IS DISCREPANCY IN THE DATES HAS NOT BEEN FORTHCOMING AND NO EXPLANATION F ROM ASSESSEE WAS SOUGHT. THE ORDER OF CIT(A) ALSO DOES NOT INDICATE HOW THE DELAY WAS CALCULATED. IT WAS ALSO SUBMITTED THAT ASSESSEES COUNSEL, AN INCOME TAX PRACTITIONER, DID NOT RESPOND TO THE NOTICES. NOTHING WAS ON RECORD WHETH ER NOTICE WAS PROPERLY SERVED TO HIM OR NOT. THEREFORE, IN TH E INTEREST OF JUSTICE, WE ARE OF THE OPINION THAT ANOTHER OPPORTU NITY SHOULD BE GIVEN TO ASSESSEE NOT ONLY TO EXPLAIN THE DELAY BUT ALSO TO SUBMIT HIS SUBMISSIONS ON THE ADDITIONS MADE BY THE A.O. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDER OF LD. CI T(A) AND RESTORE THE APPEAL MEMO BEFORE THE LD. CIT(A) TO CO NSIDER IT AFRESH, BY GIVING DUE OPPORTUNITY TO ASSESSEE. ASSE SSEE IS ALSO DIRECTED TO FILE REVISED FORM NO.35 INDICATING CORR ECT ADDRESS TO WHICH NOTICES ARE TO BE SENT, SO THAT HE WILL GE T DUE OPPORTUNITY BEFORE THE AUTHORITIES. 8. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13.02.2015. SD/- SD/- (SAKTIJIT DEY) (B.RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED 13 TH FEBRUARY, 2015 VBP/- 5 ITA.NO.1526/HYD/2014 MR. M. VENKAT REDDY, NALGONDA COPY TO 1. MR. VENKAT REDDY, PROP URVASI WINES, SHALIGOURARAM (V), NALGONDA DIST., C/O. MR. A.V. RAGHURAM, & MR. P. VI NOD, ADVOCATES, 610, BABUKHAN ESTATES, BASHEERBAGH, HYDERABAD. 2. THE INCOME TAX OFFICER, WARD-1, NALGONDA. 3. CIT(A)-VI, 6A, I.T. TOWERS, A.C. GUARDS, HYDERABAD-500 004. 4. CIT-VI, HYDERABAD. 5. D.R. ITAT B BENCH, HYDERABAD.