M. Kasiviswanath Goud, Hyderabad V. ITO,Ward-8(2), Hyderabad

ITA 671/HYD/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 82232 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 11-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA.NO.671/HYD/2014 ASSESSMENT YEAR 2009-2010 MR. M. KASIVISWANATH GOUD, HYDERABAD. PAN AGLPM-0970-E VS. THE INCOME TAX OFFICER WARD 8 (2) HYDERABAD. (APPELLANT) (RESPONDENT) FOR ASSESSEE MR. G. PAVAN KUMAR FOR REVENUE MR. R. MOHAN REDDY DATE OF HEARING 05.08.2014 DATE OF PRONOUNCEMENT 13.08.2014 ORDER PER B. RAMAKOTAIAH, A.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD. CIT(A)-III, HYDERABAD DATED 10.02. 2014 FOR THE A.Y. 2009-2010 DISMISSING THE APPEAL OF THE ASSESSE E AS NOT MAINTAINABLE IN LIMINI . ASSESSEE IS AGGRIEVED ON THE SAME. 2. IT WAS SUBMITTED BY THE LD. COUNSEL THAT ASSESS EE HAS MENTIONED THE DATE OF SERVICE OF ORDER AS 14.12 .2011 IN FORM-35 ON THE BASIS OF THE OPINION GIVEN BY THE FA MILY MEMBERS. IT WAS FURTHER SUBMITTED THAT AT THE RELEV ANT PERIOD ASSESSEES BROTHER-IN-LAW WAS IN SERIOUS CONDITION SUFFERING FROM CANCER AND PASSED AWAY ON 21.07.2012 AND BASED ON THE OPINION GIVEN BY THE MEMBERS, THE DATE OF SERVICE W AS MENTIONED AS 14.12.2011. REFERRING TO THE VARIOUS P OSTINGS GIVEN BY THE LD. CIT(A), LD. COUNSEL SUBMITTED THAT NO OPPORTUNITY WAS GIVEN BEFORE DISMISSING THE APPEAL ON THE 2 ITA.NO.671/HYD/2014 MR. M. KASIVISWANATH GOUD, HYDERABAD. REASON THAT AS PER THE ASSESSING OFFICER THE ORDER WAS SERVED THROUGH SPEED POST ON 06.12.2011 AND THEREFORE, THE APPEAL WAS FILED LATE BY 07 DAYS. IT WAS THE CONTENTION T HAT LD. CIT(A) SHOULD HAVE ASKED THE ASSESSEE TO EXPLAIN OR TAKEN CONDONATION PETITION FROM THE ASSESSEE AND ADJUDICA TED ON MERITS. LD. COUNSEL SUBMITTED THAT THE FACTS AS AVA ILABLE WITH THE ASSESSEE WERE ONLY MENTIONED IN THE APPEAL MEMO AND THE APPEAL WAS FILED IN TIME AND THEREFORE, LD. CIT(A) SHOULD HAVE DECIDE THE ISSUE ON MERITS. 3. LEARNED D.R. HOWEVER SUBMITTED THAT ASSESSEES APPEAL WAS BELATEDLY FILED AND THEREFORE, DISMISSED . 4. WE HAVE CONSIDERED THE ISSUE. WITHOUT GOING INT O THE MERITS OF THE ADDITION MADE BY THE A.O. AND THE CONTENTIONS RAISED IN THE GROUNDS NO. 3 TO 7, WE AR E OF THE VIEW THAT THE LD. CIT(A) CERTAINLY ERRED IN DISMISSING T HE APPEAL IN LIMINI ON THE REASON OF DELAY OF 07 DAYS WITHOUT GIVING A NY OPPORTUNITY TO THE ASSESSEE. AS SEEN FROM THE APPEA L MEMO, THE CASE WAS POSTED ON 18.10.2013 TO 04.02.2014 OVE R A PERIOD OF MORE THAN ONE YEAR GIVING 5 POSTINGS. HOW EVER, IT SEEMS THAT AT NO POINT OF TIME, THE ISSUE OF SERVIC E OF THE ASSESSMENT ORDER DATED 30.11.2011 ON ASSESSEE ON 06.12.2011 HAS BEEN MENTIONED TO THE ASSESSEE AND N O OPPORTUNITY SEEMS TO HAVE BEEN GIVEN BY THE LD. CIT (A), IF HE FINDS THAT APPEAL WAS FILED BELATEDLY. AS FAR AS FO RM-35 FILED BY THE ASSESSEE IS CONCERNED, HE HAS MENTIONED THE DAT E AS 14.12.2011 AND ACCORDINGLY APPEAL FILED WAS WITHIN THE TIME. THE BASIS FOR TAKING THE DATE AS 06.12.2011 BY THE LD. CIT(A) IS NOT CLEAR AS ONLY THESE FOLLOWING FACTS WERE BROUGH T BY THE LD. CIT(A) IN THE ORDER VIDE PARA 4 OF THE ORDER : 3 ITA.NO.671/HYD/2014 MR. M. KASIVISWANATH GOUD, HYDERABAD. 4. IN THIS CASE, THE ASSESSMENT ORDER WAS PASSED O N 30.11.2011 AND WAS SERVED THROUGH SPEED POST ON THE APPELLANT ON 6.12.2011. THE AND NUMBER OF DISPATCH HAVE BEEN MENTIONED BY THE ASSESSING OFFICER INFORMED TH ROUGH ITNS 51. AS PER SECTION 249, OF APPEAL HAS TO BE FI LED WITHIN 30 DAYS OF THE RECEIPT OF THE ORDER. IN THIS CASE T HE APPEAL HAD TO BE FILED BY 5.01.2012, BUT THE SAME WAS FILE D ON 12.01.2012 I.E., LATE BY SEVEN DAYS. 5. IT IS NOT CLEAR WHETHER THE ORDER WAS DISPATCHE D THROUGH SPEED POST ON 06.12.2011 OR IT WAS SERVED O N ASSESSEE ON 06.12.2011 AND ON WHOM IT WAS SERVED. FURTHER, W E ARE OF THE VIEW THAT IN CASE THE ORDER WAS INDEED SERVED O N 06.12.2011, ASSESSEE SHOULD HAVE BEEN GIVEN AN OPPO RTUNITY TO FILE CONDONATION PETITION, AS THERE SEEMS TO BE SOME GENUINE REASON IN NOT PREFERRING TO THE APPEAL AS STATED IN THE GROUNDS THAT ASSESSEES BROTHER-IN-LAW WAS SERIOUS AT THAT RELEVANT POINT OF TIME AND SUBSEQUENTLY PASSED AWAY. SINCE, ASSESSEE WAS NOT GIVEN ANY OPPORTUNITY, WE ARE OF THE OPINIO N THAT ORDER OF THE LD. CIT(A) CANNOT BE SUSTAINED. THEREFORE, W E SET ASIDE THE ORDER AND RESTORE THE APPEAL TO THE FILE OF LD. CIT(A) WHO SHOULD GIVE DUE OPPORTUNITY TO THE ASSESSEE, CONSID ER THE CONDONATION PETITION, IF ANY REQUIRED AND THEN DECI DE THE APPEAL ON MERITS. WITH THESE DIRECTIONS, ASSESSEES APPEAL IS CONSIDERED AS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13.08.2014. SD/- SD/- (ASHA VIJAYARAGHAVAN) (B.RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED 13 TH AUGUST, 2014 VBP/- 4 ITA.NO.671/HYD/2014 MR. M. KASIVISWANATH GOUD, HYDERABAD. COPY TO 1. MR. M. KASIVISWANATH GOUD, HYDERABAD C/O. M. KALYANDAS & CO. C.AS. 15, VENKATESHWARA COLONY, NARAYANAGUDA, HYDERABAD 500 029. 2. THE INCOME TAX OFFICER, WARD 8(2), HYDERABAD 3. CIT(A)-III, HYDERABAD 4. CIT-II, HYDERABAD 7. D.R. A BENCH, ITAT, HYDERABAD.