SRIDEVI VUYYURU,HYDER vs. ITO WARD-11(5), HYDERABAD

Aggrieved by such an action of the learned Assessing Officer, assessee preferred appeal before the learned CIT(A). The impugned order reveals that the assessee did not respond to several notices issued by the learned CIT(A) and, therefore, the learned CIT(A) opined that though the assessee filed the appeal, she has no interest in prosecuting the same and perhaps, she is not aggrieved by the assessment order. Learned CIT(A) accordingly dismissed the appeal in limine.

Assessee preferred appeal before us stating that she has been maintaining the books of accounts and the deposits in the bank accounts were part of her turnover and, therefore, neither the addition nor upholding the same is sustainable. 5. When the matter is called, neither the assessee nor any authorised representative entered appearance. It could be seen from the record that the notices were issued to the address given in form No. 36. If the assessee is available in such address, such notice should have been served on the assessee. If for any reason, the assessee is not available there, it is for the assessee to make arrangements for service of such notice by furnishing the address where the assessee would be available, or to deliver it to some authorised person, or by making request to the postal department to detain the mail till the assessee claims the same. In these circumstances, we find no option but to proceed to hear the counsel for Revenue and decide the matter on merits basing on the material available on record.

We heard the learned DR and perused the material papers on record. Before the learned CIT(A), the assessee pleaded that due to unavoidable circumstances, the assessee could not participate in the assessment proceedings and given an opportunity, the assessee is ready to provide the requisite Information before the learned Assessing Officer. According to the assessee, her absence was due to ill-ness and bed rest and that is the reason why though she has been maintaining books of accounts establishing that the credits appearing in the bank account were part of her turnover, she could not produce such accounts before the learned Assessing Officer. She prayed before the learned CIT(A) that she was running a road-side milk booth with regular cash receipts, which she was depositing in the bank.

Inasmuch as the assessee did not appear before the learned CIT(A), learned CIT(A) passed the impugned order, dismissing the appeal in limine. Learned CIT(A), however, did not advert to the merits of the case and as a matter of fact, no enquiry is done as to the trade/business of the assessee, which is vital to determine the income component of the assessee. The statement of facts filed before the learned CIT(A) in Form No. 35 refers to certain facts wherein it was stated that the assessee was a milk vendor with total turnover of above Rs.2 crores, the requirement of filing of income tax returns along with the tax audit report under section 44AB etc. Assessee stated that the accountant, who had the custody of all the Information had gone on leave to his native place and did not respond to the calls made by the assessee and, therefore, could not file the return of income and furnished the Information to the learned Assessing Officer.

On a perusal of the record, we are of the considered opinion that the facts stated by the assessee before the learned CIT(A) needs verification as to the trade/business of the assessee, nature of receipt to be found in the credits of the bank and the component of income thereon. The fact remains that due to the non-cooperation of the assessee, the learned CIT(A) had to proceed exparte. 9. On a careful consideration of the matter, we find that though the impugned order states that several notices were issued but in vain. Even otherwise, assuming for a while that the notices were served on the assessee and the assessee does not turn up, learned CIT (A) cannot be said to have erred in proceeding ex-parte with the matter. Proceeding ex-parte, however, does not mean the dismissal of the appeal in limine, without referring to the merits or otherwise of the case. The assessment order was available before the Learned CIT (A) and also the grounds of appeal. Learned CIT (A) should have referred to the impugned order passed by the Learned Assessing Officer and state whether such an order is legal or otherwise.

10. We, therefore, are of the opinion that if the assessee is non cooperative in disposal of the appeal, no doubt the learned CIT(A) is not bound to keep the matter pending, but at the same time learned CIT(A) should have read the papers and by giving cogent reasons, should have disposed of the appeal on merits. Nothing prevented the learned CIT (A) from recording the reasons even in the absence of the assessee. We, therefore, find that the impugned order dismissing the appeals in limine cannot be sustained. It is a fit case to remit the matter to the file of the learned CIT (A) to dispose of the same by giving reasons. It is made clear to the assessee that he shall cooperate with the authorities to get the matter disposed of on merits and it is the last opportunity. Grounds are accordingly treated as allowed for statistical purposes.

In the result, appeal of the assessee is treated as allowed for statistical purposes.