Sesham Rao Niranjan, Visakhapatnam V. ITO, Ward-5(2), Visakhapatnam

ITA 153/VIZ/2020

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 6946 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 09-07-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 68; 263; 143(3); 2(22)(e); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI DUVVURU R L REDDY, HON’BLE JUDICIAL MEMBER & SHRI S. BALAKRISHNAN, HON'BLE ACCOUNTANT MEMBER I.T.A. No. 153/VIZ/2020 (Asst. Year : 2011-12) Sri Sesham Rao Niranjan, Madhurawada, Visakhapatnam. PAN: AQSPS 8263 P Vs. Income Tax Officer, Ward-5(2), Visakhapatnam. (Appellant) (Respondent) Assessee by: Shri C. Subrahmanyam Revenue by: Shri SPG Mudaliar, Sr. AR Date of hearing: 07/03/2022 Date of pronouncement: 14/03/2022 O R D E R PER DUVVURU RL REDDY, JUDICIAL MEMBER: This appeal filed by the assessee against the order of the Ld. CIT(A)-2, Guntur in appeal No. 10251/GNT/CIT(A)-2/2017-18, dated 29/01/2020 passed U/s. 143(3) r.w.s 263 and U/s. 250(6) of the IT Act, 1961 for the assessment year 2011-12. 2. The assessee has raised six grounds in his appeal and they are extracted herein below for reference:- “1. That under the f acts and circumstances of the case the additions made by the Assessing Off icer vide orders passed U/s. 143(3) r.w.s 263 of the IT Act and to the extent 2 such additions were upheld by the Ld CIT(A) are against the f acts of the case and provisions of law. 2. The direction of Ld. CIT(A) to Assessing Off icer to re- examine the issue of addition made pertaining to deemed dividends of Rs. 10,00,000/- U/s. 2(22)(e) of the Act is contrary to the provisions of section 250 of IT Act since the CIT(A) cannot set aside the matter in disposing off the appeal. 3. The direction of the Ld. CIT(A) to Assessing Off icer to re- examine the issue of the addition made pertaining to cash credit of Rs. 35,00,000/- (U/s. 68 of IT Act) is contrary to the provisions of section 250 of IT Act since the CIT (A) cannot set aside the matter in disposing off the appeal. 4. The Ld. CIT(A) erred in conf irming the addition pertaining to cash credit of Rs. 14,00,000/- when the AO himself has not given any conclusive f inding while making this addition as contemplated as provisions of section 68 of IT Act. The Ld. CIT(A) ought to have known that AO has made addition merely by stating that the explanation off ered by the assessee could not be verif ied by him due to lack of time considering the assessment is getting barred by 31 st December, 2016. 5. The Ld. CIT(A) is not correct in sustaining the addition of Rs. 6,00,000/- of the deposits of cash in bank account under section 68 of IT Act when this section relates to unexplained cash credit and whereas cash deposits in bank do not come within the purview of section 68 of IT Act. Even on merits, the addition sustained is not in accordance with law. 6. For these and other reasons that are to be urged at the time of hearing of the case the appellant prays that the order passed by the Ld. CIT(A) are against the provisions of law and f acts of the case and the same are to be quashed in the interest of justice.” 3. At the outset, the Ld. AR submitted that there is a delay of 88 days in filing the appeal before the Tribunal. In this regard, the assessee had filed an affidavit seeking condonation of delay wherein the reasons for filing the appeal beyond the prescribed time limit was explained. For 3 reference, the relevant portion from the affidavit is extracted herein below: - “........ Aggrieved by the orders, the assessee wanted to prefer an appeal before the Hon’ble ITAT, Visakhapatnam Bench. Whereas for filing the appeal, we approached Sri C. Subrahmanya, CA, Visakhapatnam on 18/03/2020 who after discussing the case informed that he can do the needful of filing the appeal in the first week of April. Accordingly, directed me to come in the first week of April, 2020. But in the meanwhile a lockdown has been imposed from 23 rd March, 2020 because of which I confined myself to the house. Because of COVID situation the office of C. Subrahmanyam also did not function and ultimately when his office was opened, I approached him on 02/07/2020 requesting him to expedite and file the appeal accordingly the appeal was filed on 07/07/2020 causing a delay........” 4. On perusal of the affidavit filed by the assessee, we are of the view that the reason for the delay was due to pandemic situation prevailed during the relevant period of time, the assessee could not file the appeal before the Tribunal within the stipulated time. Therefore, relying on the decision of the Hon’ble Supreme Court in the case of Collector, Land Acquisition vs. MST. Katiji & Ors (167 ITR 471) (SC), We hereby condone the delay of 88 days in filing the appeal before the Tribunal and proceed to adjudicate the appeal on merits. 5. Before us, at the outset the Ld. AR submitted that the Ld. CIT (A) had passed ex-parte order without providing proper opportunity to the assessee of being heard. It was therefore pleaded that the matter may be remitted back to the file of the Ld CIT (A) in order to provide one more 4 opportunity to the assessee of being heard. Ld. DR, on the other hand, vehemently opposed to the submissions of the Ld. AR and argued that sufficient opportunities had been provided to the assessee however, on the given dates of hearing, neither the assessee nor his Representative appeared before the Ld. CIT (A). Therefore the Ld. CIT (A) had no other option but to pass ex-parte order based on the materials available on record. Hence, it was pleaded that the order passed by the Ld. CIT(A) does not call for any interference. 6. We have heard the rival submissions and carefully perused the materials on record. On examining the facts of the case, we find that the Ld. CIT (A) had posted the case on several occasions. However, none appeared on behalf of the assessee before the CIT(A) on the given dates of hearing. Therefore, the Ld. CIT (A) was left with no other option except to adjudicate the appeal ex-parte. In this situation, considering the prayer of the Ld. AR, in the interest of justice, we hereby remit the matter back to the file of Ld. CIT (A) in order to consider the appeal afresh on merits by providing one more opportunity to the assessee of being heard. At the same breath, we also hereby caution the assessee to promptly co-operate before the Ld. CIT (A) in the proceedings failing which the Ld. CIT (A) shall be at liberty to pass appropriate order in accordance with law and merits based on the materials on record. It is ordered accordingly. 5 7. In the result, appeal filed by the assessee is allowed for statistical purposes as indicated hereinabove. Pronounced in the open Court on the 14 th March, 2022. Sd/- Sd/- (S. BALAKRISHNAN) (DUVVURU R L REDDY) Accountant Member Judicial Member Dated: 14 th March, 2022. OKK Copy to: 1. The Assessee: Sri Sesh am R ao Nir an jan C/o. C. Subr ah many am, FCA, 102, L akshmi Ap ar tmen ts, FACOR L ayou t, W altair Uplands, Vis akhap atn am-530003. 2. The Revenue: In come T ax Off icer, W ard-5(2), R.No. 215, 2 nd Floor, Direct T axes Building, MVP Colony, Visakh ap atn am – 530017. 3. The Pr.C IT-2, Visakh ap atn am. 4. The C IT (A)-2, Guntur. 5. The D.R., IT AT, Visakh ap atn am. 6. Gu ard f ile. By order Sr. Private Secretary, ITAT, Visakhapatnam.