OPTISERV MUSKAN SERVICES PVT.LTD., HYD,HYDERABAD vs. DCIT, CIRCLE-16(3), HYD, HYDERABAD

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ITA 1247/HYD/2015Status: DisposedITAT Hyderabad22 December 2021AY 2005-066 pages
AI SummaryRemanded

What did the Tribunal hold?

The ITAT held that the CIT(A) should have decided the appeal on merits as per Sections 250 & 251. The Tribunal found that the appeal against the order passed under Section 143(3) r.w.s. 263 was appealable before the CIT(A) under Section 246A.

What were the facts?

The assessee's appeal before the ITAT was filed with a significant delay of 1983 days, for which the reason provided was that the order was misplaced by a staff member. The CIT(A) had dismissed the assessee's appeal on the grounds that it could not be decided by him as it was against an assessment order passed under Section 263.

What were the issues?

Whether the CIT(A) was correct in dismissing the appeal on procedural grounds instead of deciding on merits, and whether the delay in filing the appeal before the ITAT should be condoned.

Which sections of the Income-tax Act were involved?

Section 263,Section 143(3),Section 250,Section 251,Section 246A

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, HYDERABAD BENCHES “B”: HYDERABAD

Before: SHRI SATBEER SINGH GODARA & SHRI LAXMI PRASAD SAHU

For Appellant: Shri P. Murali Mohan Rao
For Respondent: Shri Y.V.S.T. Sai
Hearing: 21/12/2021Pronounced: 22/12/2021

O R D E R PER L.P. SAHU, A.M.: This appeal filed by the assessee is directed against CIT, Hyderabad dated 22/03/2021 for AY 2005-06 involving proceedings u/s 263 of the Income Tax Act, 1961 ; in short “the Act”.

:- 2 -: & 1111/Hyd/2015 M/s Optiserv Muskan Service Pvt. Ltd., Hyd.

2.

On perusal of record, we find that the appeal filed by the assessee before the ITAT against the order of CIT is barred by limitation of 1983 days. To this effect, the ld. AR of the assessee filed a petition for condonation of the said delay along with an affidavit wherein it was stated as under:

2.1 On perusal of the above petition for condonation, we observe that there is no plausible and cogent reason for filing the appeal belatedly with a delay of 1983 days before the ITAT. The delay should be condoned if the reasons are cogent in filing the appeal belatedly. The appellant has :- 3 -: & 1111/Hyd/2015 M/s Optiserv Muskan Service Pvt. Ltd., Hyd. stated that the order was received on 30/03/2010, but, it was misplaced by one of its staff, which is a vague reason. The assessee was aware about the service of the order and if the order was misplaced/lost, the assessee can obtain a certified duplicate copy immediately. It clearly shows that the assessee had ignored his duty to file the appeal within the stipulated time as per law. Therefore, the delay is not condoned and rejected the petition filed for condonation of delay along with affidavit.

3.

This appeal filed by the assessee is directed against CIT(A), Hyderabad’s order dated 14/07/2015 for AY 2005- 06 involving proceedings u/s 143(3) r.w.s. 263 of the Income Tax Act, 1961 ; in short “the Act”.

4.

The CIT(A) dismissed the appeal of the assessee when the assessee preferred an appeal before him against the order of AO passed u/s 143(3) r.w.s. 263 of the IT Act by observing as under:

:- 4 -: & 1111/Hyd/2015 M/s Optiserv Muskan Service Pvt. Ltd., Hyd.

3. As the Commissioner of Income tax and the Commissioner of Income tax (Appeals) are the equal authorities, an appeal against the assessment completed as per the directions of the Commissioner of Income tax u/s. 263 of the Act could not be decided by the Commissioner of Income tax (Appeals). Accordingly, the appeal is treated as dismissed for statistical purposes.

5.

Before us, the ld. AR submitted that the CIT(A) has not decided the appeal on merits and dismissed the appeal on the ground that the same could not be decided by him as the appeal filed against the assessment order completed as per the direction of the CIT u/s 263 of the Act.

6.

The ld. DR, on the other hand, relied on the order of the CIT(A).

7.

After considering the rival submissions and perusing the material on record as well as the orders of the revenue authorities, we are of the view that the CIT(A) ought to have decided the appeal of the assessee as per the provisions of section 250&251 of the Act. We also observe that the AO has passed the order u/s 143(3) r.w.s. 263 of the Act, and therefore, it is an appealable order before the :- 5 -: & 1111/Hyd/2015 M/s Optiserv Muskan Service Pvt. Ltd., Hyd.

CIT(A) u/s 246A of the Act. Therefore, to meet the ends of justice, we remit the matter back to the file of the CIT(A) with a direction to decide the appeal on merits after providing reasonable opportunity of being heard to the assessee in the matter. The assessee is directed to substantiate its case by way of proper documentary evidence before the CIT(A) without seeking any adjournments. Accordingly, the grounds raised by the assessee are treated as allowed for statistical purposes.

8.

In the result, appeal in is allowed for statistical purposes in above terms. A copy of this common order be placed in the respective case files.

Pronounced in the open court on 22nd December, 2021.

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