K. Narsimham, Nizamabad, Hyderabad V. ITO, Ward-1, Nizamabad, Nizamabad

ITA 967/HYD/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6233 (ITAT-HYDERABAD)
• Duration Of Justice: 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 01-07-2016
• Court: TRIBUNAL
• Keywords: Business income; Condonation of delay
• Section: 143(3); 154

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH SMC, HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ITA NO. 967/HYD/2016 ASSESSMENT YEAR: 2010-11 SHRI K. NARASIMHAM, NIZAMBAD. PAN ACGPK9338R VS. THE INCOME TAX OFFICER WARD-1 NIZAMABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE B BY : SMT. SUMAN MALIK DATE OF HEARING : 23-01-2016 DATE OF PRONOUNCEMENT : 27-01-2017 ORDER THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDERS O F THE CIT(5)-V, HYDERABAD, DATED 29-03-2016. THIS CA SE WAS POSTED NUMBER OF TIMES FROM 13-07-2016 ONWARDS AND IN THE LAST POSTING ON 01-01-2017 COUNSEL FOR THE ASSE SSEE SHRI K. HANMANDLOO APPEARED BUT CASE GOT ADJOURNED. WHEN THE CASE WAS TAKEN UP ON 23-01-2017, THERE WAS NEITHER AN ADJOURNED PETITION NOR AN APPEARANCE BY THE COUNSEL, THEREFORE, THE APPEAL IS CONSIDERED EXPARTE ASSESSEE, ON THE BASIS OF THE SUBMISSIONS MADE EARL IER IN THE PROCEEDINGS AND AFTER HEARING THE LD. DR IN DET AIL. 2. BRIEFLY STATED ASSESSEE IS HAVING VAMSI GAS AGE NCY AT ARMOUR, NIZAMABAD AS A PROPRIETOR CONCERN AND HA S INCOME FROM BUSINESS AT RS. 6,45,533/-, ASSESSEE FI LED RETURN ADMITTING A TOTAL INCOME OF RS. 2,12,280/- W HICH INCLUDED BUSINESS INCOME, INCOME FROM OTHER SOURCES AND CHIT DIVIDEND. ASSESSEE ALSO CLAIMED CHIT LOSS OF R S. 2 ITA NO. 961/HYD/2016 SRI K. NARSIMHAM, NIZAMABAD. 6,25,000/-. ASSESSEE ALSO ADMITTED THE AGRICULTURAL INCOME OF RS. 1,85,000/- AND CLAIMED DEDUCTION OF RS. 1,00 ,000 TOWARDS TUITION FEE AND LIC PREMIUMS. AN INTIMATION U/S 143(1) OF THE ACT DATED 08-02-2011 WAS RECEIVED FRO M THE CENTRAL PROCESSING CENTRE OF BANGALORE IN WHICH A D EMAND OF RS. 1,06,100/- WAS RAISED DISALLOWING NET CHIT L OSS OF RS. 3,33,255/-. ASSESSEE PREFERRED AN APPLICATION U/S 154 OF THE ACT STATING THAT ASSESSEE HAS USED THE FUNDS FR OM THE CHIT CONTRIBUTIONS IN THE COURSE OF BUSINESS AND ACCORDINGLY, NOT ONLY OFFERED THE DIVIDEND OF RS. 2 ,85,000/- , BUT ALSO CLAIMED LOSS OF RS. 6,25,000/-. THE SAI D APPLICATION ON U/S 154 OF THE ACT WAS REJECTED BY A N ORDER DATED 12-07-2013. 3. ASSESSEE PREFERRED AN APPEAL BEFORE THE LD . CIT(A) ON 11-10-2013, CLAIMING IN FORM 35 THAT THE SAID OR DER WAS SERVED ON 12-09-2013. THE LD. CIT(A) NOTICED T HAT THE DATE OF SERVICE AS PER THE INFORMATION AVAILABLE IN AST WAS 17-7-2013. THE LD. CIT(A) DISMISSED THE APPEAL STA TING AS UNDER: 5. THE DATE OF SERVICE OF THE INTIMATION AS PER TH E INFORMATION AVAILABLE IN AST IS 17.07.2013. THE AP PEAL WAS FILED ON 11.10.2013 AND HENCE, THE APPEAL WAS FILED AFTER 86 DAYS OF RECEIPT OF INTIMATION. I HAVE RECEIVED THE COMMUNICATION FROM AO IN THIS REGARD. THUS THERE IS A DELAY IN F ILING OF APPEAL BY 56 DAYS. THE APPELLANT NEITHER GAVE ANY REASONS FOR LATE FILING OF APPEAL NOR FILED ANY PETITION FOR CONDONA TION OF DELAY. 6. AS PER SECTION 249(2), THE APPEAL HAS TO BE FILE D WITHIN THIRTY DAYS OF THE DATE ON WHICH INTIMATION OF THE ORDER SOUGHT TO BE APPEALED AGAINST IS SERVED. IN THE PRESENT C ASE, THE APPEAL HAS BEEN FILED AFTER 86 DAYS OF RECEIPT OF I NTIMATION FROM CPC. MOREOVER, THERE IS NO REASON CITED BY THE APP ELLANT FOR SUCH DELAY. 3 ITA NO. 961/HYD/2016 SRI K. NARSIMHAM, NIZAMABAD. 7. IN VIEW OF THE FOREGOING, THE APPEAL FILED BY TH E APPELLANT IS DISMISSED, ON THE GROUND OF LATE FILING OF APPEA L WITHOUT ANY VALID REASONS. 4. ASSESSEE PREFERRED THE PRESENT APPEAL RAISI NG THE FOLLOWING GROUNDS: 1. THE COMMISSIONER OF INCOME TAX(APPEALS)-5, HYDE RABAD SHOULD NOT HAVE DISMISSED THE APPEAL UNDER THE GROU ND OF 'LATE FILING OF APPEAL' SINCE THE APPELLANT HAS RECEIVED THE INTIMATION ON 12-09-2013, THE DATE MENTIONED IN FORM 35, AND F ILED APPEAL ON 11-10-2013 WITHIN THE TIME OF 30 DAYS OF RECEIPT OF INTIMATION. 2. THE COMMISSIONER OF INCOME TAX(APPEALS)-5, HYDER ABAD SHOULD HAVE MADE AVAILABLE TO THE ASSESSEE THE COMM UNICATION RECEIVED FROM THE ASSESSING OFFICER. 3. THE COMMISSIONER OF INCOME TAX(APPEALS)-5, HYDER ABAD SHOULD HAVE BROUGHT TO THE NOTICE OF DELAY, DIFFERE NCE OF DATES IN FILING OF APPEAL AND SOUGHT CLARIFICATION AT THE TI ME OF HEARING. 4. THE COMMISSIONER OF INCOME TAX(APPEALS)-5, HYDER ABAD SHOULD HAVE CALLED FOR CLARIFICATION FROM THE ASSES SEE FOR VARIATION OF DATES OF RECEIPT OF INTIMATION AS PER THE DEPARTMENT RECORDS AND OWN STATEMENT OF THE ASSESSEE BEFORE DI SPOSING OFF THE APPEAL. 5. THE CPC, BANGALORE HAS NOT ALLOWED THE CHIT LOSS WHICH IS ALLOWABLE SINCE THE CHIT DIVIDEND HAS OFFERED AS IN COME FROM OTHER SOURCES. 6. THE ASSESSEE IS FOLLOWING THE SAME PROCEDURE FOR SO MANY YEARS, THE DETAILS WERE FILED WITH THE COMMISSIONER OF INCOME TAX(APPEALS)-5, HYDERABAD DURING HEARING OF THE APP EAL. 7. THE ASSESSEE HAS FOLLOWED THE FAIR INCOME DECLAR ATION METHOD OF OFFERING DIVIDEND AS INCOME AND CLAIMING CHIT LOSS UNDER THE SAME HEAD OF 'INCOME FROM OTHER SOURCES'. 8. THE ASSESSING OFFICER HAS CONSIDERED THE REQUEST OF THE ASSESSEE OF CONSIDERING CHIT LOSS AGAINST CHIT DIVI DEND WHILE COMPLETING THE ASSESSMENT FOR THE IMMEDIATELY PREVI OUS ASST. YEAR: 2009-10 U/S 143(3) R.W.S 147 ON 16-09-2014. 9. THE COMMISSIONER OF INCOME TAX(APPEALS)-5, HYDER ABAD SHOULD HAVE DISPOSED OFF THE APPEAL ON MERITS OF MA TERIAL ON RECORD. 4 ITA NO. 961/HYD/2016 SRI K. NARSIMHAM, NIZAMABAD. 5. AS CAN BE SEEN FROM THE ORDER AS WELL AS THE GRO UNDS RAISED, ASSESSEE WAS NOT CONFRONTED WITH THE FACT T HAT APPEAL WAS FILED BELATEDLY. IT IS THE DUTY OF THE LD. CIT(A) TO ASK ASSESSEE CLARIFICATION OR EXPLANATION IN THE CASE IF HE FINDS THAT THE DATE MENTIONED IN FORM NO. 35 IS NOT TALLYING WITH THE INFORMATION AVAILABLE IN DEPARTME NTAL RECORDS. WITHOUT CONFRONTING THE INFORMATION AVAIL ABLE PARTICULARLY, THE DATE OF THE SERVICE ON 17-07-2013 , THE ACTION OF LD.CIT(A) IN DISMISSING THE APPEAL AS BEL ATED IS NOT CORRECT, WHEN ASSESSEE CLAIMS THAT THE ORDER U/ S 154 OF THE ACT WAS SERVED ON 12-09-2013 AND THE APPEAL WAS FILED IN TIME FROM THAT DATE. WITHOUT GIVING AN OP PORTUNITY TO THE ASSESSEE LD CIT(A) SHOULD NOT HAVE DECIDED T HAT THE APPEAL FILED BY THE ASSESSEE WAS BELATED AND DISMI SSED THE APPEAL. ASSESSEE GROUNDS RAISED AS CAN BE SEEN FRO M GROUND NO. 2 TO 4 ARE ON THE SAME ISSUE. THEREFORE , WITHOUT GOING INTO THE MERITS OF THE CASE AS CONTEN DED IN THE GROUND NO. 5 TO 9, I AM OF THE OPINION THAT THE LD. CIT(A) SHOULD HAVE GIVEN AN OPPORTUNITY TO THE ASSE SSEE TO JUSTIFY FILING THE APPEAL ON THAT DAY. THE INFORMA TION AVAILABLE WITH THE DEPARTMENT SHOULD ALSO BEEN CONF RONTED TO THE ASSESSEE. IN ORDER TO DO THAT, THE ORDER OF THE LD. CIT(A) DATED 29-03-2016 WAS SET ASIDE AND APPEAL BE FORE THE LD. CIT(A) IS RESTORED. THE LD. CIT(A) IS DIRE CTED TO GIVE AN OPPORTUNITY TO THE ASSESSEE AND ALSO CONSIDER TH E ISSUES ON MERITS IN THE CASE APPEAL IS FILED WITHIN TIME. IF THE APPEAL IS FILED BELATEDLY, THE ASSESSEE WAS SHO ULD BE GIVEN AN OPPORTUNITY TO FILE CONDONATION PETITION, IF REQUIRED. WITH THESE OBSERVATIONS, ORDER OF THE LD. CIT(A) IS 5 ITA NO. 961/HYD/2016 SRI K. NARSIMHAM, NIZAMABAD. SET ASIDE AND APPEAL BEFORE HIM IS RESTORED FOR FRE SH CONSIDERATION. 6. IN THE RESULT, THE ASSESSEES APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 27 TH JANUARY, 2017. SD /- (B. RAMAKOTAIAH ) ACCOUNTANT MEMBER HYDERABAD, DATED: 27 TH JANUARY, 2017 KRK 1) SHRI K NARSIMHAM, C/O. CA.K HANMANDLOO, FLAT NO. 404, MOUNT NASIR APARTMENTS, BESIDE RAVIND RA BHARATHI, SAIFABAD, HYD-04. 2) ITO, WARD -(1), NIZAMABAD 3) CIT(A) -V, HYDERABAD 4) PCIT -5, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., H YDERABAD. 6) GUARD FILE