Camillo Joseph Lemos, Hyderabad V. Income Tax Officer (International Taxation)-I, Hyderabad

MA 73/Hyd/2021

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 7389 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-11-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 21-10-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES “B”: HYDERABAD (THROUGH VIRTUAL CONFERENCE) BEFORE SH RI SAT B EER S INGH GO DA RA , JU DI CIA L MEMBE R AND SHR I L AXMI PR AS A D SAHU , AC COUNT ANT MEMBE R M.A. No. 73/Hyd/2021 (in ITA No. 1877/Hyd/2017 Assessment Year: 2012-13) Camillo Joseph Lemos, Hyderabad. PAN – ADUPL 0296Q Vs. Income-tax Officer, International Taxation - (1), Hyderabad. (Applicant) (Respondent) ITA No. 1877/Hyd/2017 Assessment Year: 2012-13 Camillo Joseph Lemos, Hyderabad. PAN – ADUPL 0296Q Vs. Income-tax Officer, International Taxation - (1), Hyderabad. (Appellant) (Respondent) Assessee by: Shri S. Phanindra Revenue by Shri Rohit Mujumdar, CIT-DR Date of hearing: 26/11/2021 Date of pronouncement: 29/11/2021 O R D E R PER L.P. SAHU, A.M.: This Miscellaneous Application is filed by the assessee u/s 254(2) of the Income Tax Act seeking MA No. 73/Hyd/2021 & ITA No. 1877/Hyd/2017 C a m i l l o J o s e p h L e m o s , Hyd. :- 2 -: rectification/modification of the order of the Tribunal dated 25/08/2021 in ITA No. 1877/Hyd/2017. 2. In the MA, the assessee, inter-alia stated that the in the order the Hon’ble Tribunal observed that the appellant desires to avail “Vivad Se Vishwas Scheme” and has accordingly dismissed the appeal of the appellant as withdrawn. It was submitted that the findings of the Hon’ble Tribunal are not based on any material placed before it, nor the same flow from the facts of the case. 3. Referring to the above factual matrix, the ld. AR of the assessee submitted that the Tribunal may kindly rectify the above errors and allow the appeal of the assessee as indicated during the course of hearing of appeal and pass such other order as the Hon’ble Tribunal deems fit and proper in the interest of justice. 4. The ld. Ld. DR agreed to the submissions of the ld. AR. 5. Considered the rival submissions and perused the material on record. Considering the submissions of the ld. AR, we recall the order of ITAT dated 25/08/2021 and dispose of the same as under: MA No. 73/Hyd/2021 & ITA No. 1877/Hyd/2017 C a m i l l o J o s e p h L e m o s , Hyd. :- 3 -: 6. After going through the orders of revenue authorities and perusing the material on record, we find that the CIT(A) dismissed the appeal of the assessee in-limine, by observing as under: 6. The submissions of the assessee in the form of affidavit have been considered. The order uls 143(3) dated 30.03.2015 was served on the assessee on 31.03.2015. The appeal was to be filed by 30.04.201q but the appeal was filed on 11.05.2015. The Form 35 was signed by the assessee on28.04.2015 and POA was signed by the assessee on 13.04.2015. In the affidavit it is mentioned that the delay in filing of appeal is due to the delay in receipt of order in Muscat. The reason given by the assessee for delay in filing of appeal is not acceptable since both Form 35 and POA were signed by the assessee before 30/04/2015 i.e., the last date for filing of appeal. The assessee did not substantiate the fact that the petition for condonation was received back on 10.05.2015 and Form 35 was prepared on 20.04.2015 and it was received back on 10.05.2015. In the petition for condonation of delay the place is mentioned as Muscat and delay mentioned is 15 days and the date is 07.05.2015. If Form 35 was signed on 28.04.2015 at Hydoa;'J0, then there was no necessity to sign condonation petition at Muscat on 07.05.2015. Therefore, the reasons mentioned in the petition or affidavit are not supported by any evidence. Hence, the delay of 11 days in filing of appeal is not condoned. Under the provisions of Section 249(2) r.w.s. 249(3), the appeal is not maintainable and accordingly, the appeal is dismissed in limine. 6.1 In the light of the findings of the CIT(A) quoted supra that the CIT(A) dismissed the appeal of the assessee in- limine for not condoning the delay of 11 days in filing the appeal before him by the assessee, we are of the view that MA No. 73/Hyd/2021 & ITA No. 1877/Hyd/2017 C a m i l l o J o s e p h L e m o s , Hyd. :- 4 -: the interest of justice will be served if the appeal of the assessee is restored to the file of the CIT(A) for deciding the appeal on merits. Therefore, we direct the CIT(A) to condone the delay of 11 days in filing the appeal before him and decide the appeal on merits after providing reasonable opportunity of hearing to the assessee in the matter. The assessee is directed to substantiate its claim by way of documentary evidence at his own risk and responsibilities with three effective opportunities of hearing. Therefore, the grounds raised by the assessee on this issue are allowed for statistical purposes. 7. In the result, MA filed by the assessee is allowed and the appeal of the assessee is allowed for statistical purposes, in above terms. Pronounced in the open court on 29 th November, 2021. Sd/- Sd/- (S. S. GODARA) (L.P. SAHU) JUDICIAL MEMBER ACCOUNTANT MEMBER Hyderabad, Dated: 29 th November, 2021. kv MA No. 73/Hyd/2021 & ITA No. 1877/Hyd/2017 C a m i l l o J o s e p h L e m o s , Hyd. :- 5 -: copy to : 1 Mr. Camillo Joseph Lemos, Villa No. 12, Gangasthan, Dhullapally, Secunderabad. 2 ITO, (International Taxation), Aayakar Bhavan, Hyderabad. 4 CIT(A) - 10, Hyderabad 5 Pr. CIT (IT &TP), Hyderabad. 6 ITAT, DR, Hyderabad 7 Guard File.