Neelakanta Reddy Muddam , Hyderabad V. Income Tax officers ,Ward-11(1) , Hyderabad

ITA 70/Hyd/2022

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 4520 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Assessment Year: 2010-2011
• Appeal Filed On: 13-03-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K.P.R.R.MURTHYY
• Keywords: Unexplained cash credit

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘A’ Bench, Hyderabad Before Shri Rama Kanta Panda, Accountant Member AND Shri Laliet Kumar, Judicial Member O R D E R Per Shri Laliet Kumar, J.M. This appeal is filed by the assessee, feeling aggrieved by the order passed by the Learned Commissioner of Income Tax (Appeals)-1, Hyderabad, dated 28.10.2019 for the AY 2010-11, on the following grounds 1. The learned CIT (Appeals) is erred in facts and law while passing the order. 2. The learned CIT(Appeals) might have given another opportunity of being heard before dismissing the appeal. 3. Without prejudice to the above, it is requested that the case may be adjudicated on the following grounds of appeal. ITA No.70/Hyd/2022 Assessment Year: 2010-11 Neelakanta Reddy Muddam F.No.202, 2 nd Floor Kunapa Reddy’s Castle Towers, Anjaneya Nagar, Moosapet, Hyderabad-522 002 PAN: ANWPM2133R V s. ITO,Ward-11(1) Room No.1006, Singature towers Opp. Botanical Garden Kothaguda Hyderabad-500 084 (Appellant) (Respondent) Assessee by: Shri M.V.Prasad, Advocate Revenue by : Shri K.P.R.R.Murthyy,Sr.AR Date of hearing: 21.07.2022 Date of pronouncement: 22.07.2022 2 ITA.No.70/Hyd/2022 4. The impugned assessment order dated 29.12.2017 passed by the Learned Assessing Officer undersection.144 r.w.s. 147 of LT.Act, in so far as it is prejudicial to the interests of the appellant, is against law, weight of evidence and probabilities of the case. 5. The impugned assessment order has been passed by illegally assuming jurisdiction without issuing any notice undersection.148 by the Assessing Officer namely ITO,Ward-11( 1) , Hyderabad and consequently it is void ab initio and liable to be annulled. 6. The learned A.O. failed to appreciate that the notice undersection.148 issued by the ITO, Prodduturu on 30.03.2017 and got served by affixture on 31.03.2017 was prima facie bad in law because the appellant had med his returns of income for the assessment years 2016-17 and 2015- 16 with Hyderabad address as verifiable from the website of i.T. Department respectively on 14.03.2017 and 16.03.2017. Consequently, the assumption of jurisdiction to make the impugned reassessment on the basis of illegal affixture of notice by a different Income Tax Officer is bad in law and liable :0 be annulled. 7. The learned A.O. failed to appreciate that service of notice under section.148 by affixture could be resorted to only when normal service failed and a certificate to that effect was obtained from the notice server or from the postal authority, as enunciated in Order V Rule 20 of CPC r/w. section 282 of the Income Tax Act, 1961. Consequently, the assumption of jurisdiction for making the impugned reassessment is void ab initio and liable to be annulled. 8, Without prejudice to ground No.2: notice underSeetion.142(1) dated 24.11.2017 calling for a return of income for AY 2010-11 from the appellant is absolutely illegal and consequently void ab initio. Consequently, the impugned ex parte assessment has to be annulled. 9, Without prejudice to ground No.5 and 6: the learned A.O. failed to appreciate that the cash deposits made during F. Y. 2009-1 0 and further acquisition of property during that year were out of the sale proceeds of their agricultural land belonging to the HUF, which was not chargeable to capital gains tax and consequently erred in making an addition of Rs,2,20,98,000/_ as unexplained cash credit. He ought to have dropped the reassessment proceedings as there was no income escaping assessment. 2. At the outset, the ld. AR for the assessee had pointed out that there is a delay of 806 days in filing the present appeal. Ld.AR submitted that the assessee had filed the affidavit explaining the delay in filing the appeal, in the said affidavit the assessee had mentioned the primary reason for not filling the appeal in time to lockdown imposed by the central government on account of Covid 3 ITA.No.70/Hyd/2022 .He had also drawn our attention to the order passed by the Hon’ble Supreme Court whereby court extended the period of limitation. It was also submitted by the ld. AR that the delay prior to the COVID period had also been be explained in the affidavit . 3. Per contra DR submitted that there is inordinate delay in filing the appeal by the assessee and reasons given by the assessee for the delay have not been supported by the documentary evidence. Accordingly, the learned DR opposed to condone the delay occurred in filing the appeal by the assessee. 4. We notice at the outset that the appeal filled by the appellant suffer from 806 days delay in filing before the ITAT. In this connection, the assessee has filed an affidavit for condonation of the said delay wherein, it was, inter-alia, affirmed that due to lock down imposed by the central government as preventive measures to contain the spread of Covid-19 form 23/03/2020, caused the impugned delay in filing the appeal belatedly. We rely on Case law Collector Land Acquisition Vs. Mst. Katiji & Ors, 1987 AIR 1353 (SC) and University of Delhi Vs. Union of India, Civil Appeal No. 9488 & 9489/2019 dated 17 December, 2019, hold that such a delay; supported by cogent reasons, deserves to be condoned so as to make way for the cause of substantial justice. We accordingly hold that revenue’s impugned delay in filing these appeals is neither intentional nor deliberate but due to the circumstances beyond its control. The same stands condoned. Case is now taken up for adjudication on merits. 5. In the present case, ld.CIT(A) had dismiss the appeal of the assessee on account of nonappearance and no finding were recorded on merit . It was prayed that the order passed by the ld.CIT(A) be recalled and the matter is remand back to the file of the ld.CIT(A) for fresh adjudication. 4 ITA.No.70/Hyd/2022 6. The ld.DR, relied upon the order passed by the lower authorities. 7. We have heard the rival contentions of the parties and perused the material available on record. Admittedly, the ld.CIT(A) has disposed the appeal on account of non appearance of the assessee. Section 250(6) of the I.T.Act provides that the order of ld.CIT(A) disposing of the appeal should be in writing and shall state the points for determination, the decision thereon and the reasonings for such decision. Since, in the present case the issue has not been decided by the ld.CIT(A) as per provisions of section 250(6), therefore, we deem it appropriate to remand back the matter to the file of the ld.CIT(A) with a direction to decide the issue afresh after affording opportunity of hearing to the assessee. The assessee is also directed to appear on each and every date given by the ld.CIT(A) without seeking any adjournment under any pretext failing which the ld.CIT(A) is at liberty to pass appropriate order as per law. We hold and direct accordingly. In the result, this appeal of the assessee is allowed for statistical purposes. Order pronounced in the Open Court on 22 nd July, 2022. Sd/- Sd/- (RAMA KANTA PANDA) ACCOUNTANT MEMBER (LALIET KUMAR) JUDICIAL MEMBER Hyderabad, dated 22 nd July, 2022. Thirumalesh/sps 5 ITA.No.70/Hyd/2022 Copy to: S.No Addresses 1 Neelakanta Reddy Muddam F.No.202, 2 nd Floor Kunapa Reddy’s Castle Towers, Anjaneya Nagar, Moosapet, Hyderabad-522 002 2 ITO,Ward-11(1) Room No.1006, Singature towers Opp. Botanical Garden Kothaguda Hyderabad-500 084 3 CIT(A)-1, Hyderabad 4 Pr.CIT-5,Hyderabad 5 DR, ITAT Hyderabad Benches 6 Guard File By Order