ASHOAK ACHARYA,BHUBANESWAR vs. ASSIATANT COMMISSIONER OF INCOME TAX, CIRCLE 5(1), BHUBANESWAR

Shri Digant Diganta Dash, ld AR appeared for the assessee and Shri the assessee and Shri S.C.Mohanty, ld Sr DR S.C.Mohanty, ld Sr DR appeared for the revenue.

The appeal filed by the assessee is delayed by 149 days. The assessee has filed condonation petition with necessary affidavit for condonation of the delay. In the condonation petition, the reason given is that the assessee’s mother was not well and he was busy in looking after his sick mother. The reasons given by the assessee have not been found to be false and consequently, the delay of 149 days in filing the appeal is condoned and disposed off on merits.

It was submitted by ld AR that the assesse is an individual who had derived long term capital gain from the purchase and sale of M/s. Marvel Capital and Finance India Ltd., for a total trade value of Rs.26,42,926/-. It was the submission that the notices were issued by the AO and the assessee had no knowledge about the notices and consequently, the assessee had been unable to provide all the details before the AO. It was the submission that even before the ld CIT(A), notices issued had not been received and then resulted in an exparte order being passed by the ld CIT(A). It was the prayer that the issues in the appeal may be restored to the file of the AO and the assessee will cooperate in the set aside proceedings.

In reply, ld Sr DR submitted that the issues, if at all, should be restored to the file of the ld CIT(A) and that to cost. It was the submission that it was incumbent upon the assessee to be diligent in respect of the tax matters. P a g e 2 | 4

We have considered the rival submissions. A perusal of the order of the ld CIT(A) shows that though the notices had been sent by the CIT(A), there has been no response from the assessee and on account of non- availability of response or the evidences in respect of the addition, the ld CIT(A) had upheld the assessment order. The arguments of ld Sr DR that the issues could be restored to the file of the ld CIT(A) is not possible to be acceded to because it is noticed that even before the ld AO, evidences had not been produced. This was compelled to the assessee to file the evidences before the ld CIT(A) by invoking the provisions of Rule 46A of I.T.Rules i.e. treating the evidences as fresh evidences. It would be unnecessary entering into the litigation. This being so, in the interest of justice, the issues are restored to the file of the AO for readjudication after granting the assessee adequate opportunity of being heard

In the result, appeal of the assessee stands partly allowed for statistical purposes.