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Income Tax Appellate Tribunal, Hyderabad ‘ B ‘ Bench, Hyderabad
Before: Smt. P. Madhavi Devi & Shri Inturi Rama RaoShri Pappireddy Mahesvera
Per Smt. P. Madhavi Devi, J.M.
This is assessee’s appeal for the A.Y 2011-12 against the order of the CIT (A)-Kurnool, dated 19.04.2016. The assessee has raised the following grounds of appeal: “ 1. The order of the learned CIT (A) is erroneous both on facts and in law. 2. The learned CIT (A) erred in deciding the appeal without providing proper opportunity to the appellant. 3. The learned CIT (A) erred in not allowing the loss claimed from self occupied property of Rs.99,138. 4. The learned CIT (A) erred in confirming the action of the AO in rejecting the books of account and in estimating the net income at 9% of the gross contract receipts. The learned CIT (A) ought to have considered the fact that all the works executed by the appellant were on sub
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contract basis and the net income normally determined is about 5%. 5. Any other ground that may be urged at the time of hearing”.
At the outset, it is seen that there is a delay of 271 days in filing of the appeal before us and the assessee has filed an application for condonation of delay stating that he was not served with the copy of the order of the CIT (A) and therefore, was not aware of the order of the CIT (A) deciding the appeal ex-parte, and therefore, the delay had occurred.
The learned DR however, opposed the condonation of delay.
Having regard to the rival contentions and the material on record, we are satisfied that the assessee was prevented by reasonable cause for filing of the appeal before us. Accordingly, we condone the delay and proceed to adjudicate the issue as under.
It is seen that the assessment was completed u/s 144 of the Act since the assessee did not appear and file the relevant details before the AO. Even before the CIT (A), the assessee has only filed the appeal but did not appear or file any details and therefore, the CIT (A) had confirmed the assessment order. The learned Counsel for the assessee submitted that the assessee being a Contractor, had shifted from Kadappa to Visakhapatnam to carry out his business operations and therefore, was not able to appear before the CIT (A). He prayed that the issues may be
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referred back to the file of the CIT (A) or the AO for re-adjudication on merits. He submitted that the assessee is a Sub-Contractor and in view of the various decisions of the Coordinate Benches of this Tribunal, the income can be estimated only at 5% of the gross receipts. Thus, he prayed for the remand of the issue.
The learned DR submitted that the assessee had not availed the opportunities given by the Department and has not filed any details before the Department and therefore, he need not be given another opportunity of hearing.
Having regard to the rival contentions and the material on record, we feel that since the assessment as well as the first appeal have been decided ex-parte, the assessee should be given another opportunity of presenting its case. We therefore, remand the issue to the file of the AO for re-adjudication of the issue in accordance with the law. The assessee shall appear and file the details called for by the AO and the AO thereafter, shall decide the issue in accordance with law.
In the result, assessee’s appeal is treated as allowed for statistical purposes. Order pronounced in the Open Court on 31st August, 2018.
Sd/- Sd/- (Inturi Rama Rao) (P. Madhavi Devi) Accountant Member Judicial Member
Hyderabad, dated 31st August, 2018. Vinodan/sps
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Copy to:
1 Shri S.Rama Rao, Advocate, Flat No.102, Shriya's Elegance, 3-6- 643, Street No.9, Himayatnagar, Hyderabad 500029 2 Jt. Commissioner of Income Tax, Range-2 Kapila Theertham Road, Besides SBI, Tirupati 3 CIT (A)-Kurnool 4 Pr. CIT - Kurnool 5 The DR, ITAT Hyderabad 6 Guard File
By Order
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