SYED TAJAMUL HUSSIAN, HYDERABAD,HYDERABAD vs. DCIT, CENTRAL CIRCLE-4, HYDERABAD, HYDERABAD

Assessee has raised the following grounds:

The learned Commissioner ought to have appreciated that no material referred in section 153C, belonging to the assessee was found in the premises of Sri. Suresh Chand Agarwal & Others, therefore, section 153C of the IT Act is not applicable and therefore, order u/s. 143(3) r.w.s 153 is null and void. 4. The learned Commissioner erred in confirming the order of the Assessing Officer, wherein, an addition of Rs.8 lakhs is made inspite of offering an explanation in respect of investments made during the period relevant to the subject assessment year. 5. The learned Commissioner of Income Tax ought to have appreciated that the Assessing Officer of the searched person has not recorded a satisfaction in respect of incriminating material found if any, in the premises of the searched person, belonging to the assessee. Therefore, ought to have held that the assessment made 143(3) r.w.s 153C is null and void”. Ground Nos. 1 & 6 are general in nature.

Ld. Counsel submitted that on the additions made by assessee, invoking the provisions of Section 153C, appeals were filed for AYs. 2008-09 and 2009-10 before the CIT(A)-11, Hyderabad. Subsequently, the files were transferred from CIT(A)- 11, but unfortunately, distributed between CIT(A)-2 and CIT(A)-3. He was pursuing the appeals before the CIT(A)-3, who has remanded the matter to AO and is still pending, whereas the appeal before the CIT(A)-2 was not attended as the Counsel is not aware about pendency of appeal before the CIT(A)-2. It is also submitted that no notice was received, hence, assessee could not represent or bring this fact to CIT(A)-2 that another appeal is pending before the CIT(A)-3. Since the order passed by CIT(A)-2 is ex-parte, it was the submission of Ld. Counsel that the impugned order may be setaside and appeal may be restored to the file of CIT(A).

Ld.DR accepted the facts and submitted that the appeal in other year is still pending before the CIT(A)-3.

As seen from the order of CIT(A)-2, CIT(A) dismissed the appeal for not responding to the notices and on merits he agreed with the AO. It was stated that written submissions were submitted which are pending in AY. 2009-10 and addition made by the AO is in a way linked in both the years and the matter is remanded to AO by that CIT(A). Keeping the submissions in mind, we are of the opinion that the order passed by the Ld.CIT(A)-2 ex- parte is to be set aside and the appeal is to be restored to the file of CIT(A) for fresh consideration. The CIT(A) may also examine whether he has jurisdiction to pass the order as another appeal is pending before the CIT(A)-3 if necessary to take necessary steps for transfer of the file, or consider disposing the appeal, on merits after giving due opportunity to assessee for making submissions independently for this assessment year. Grounds are considered allowed for statistical purposes.

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

Syed Tajamul Hussain, C/o. Mohd. Afzal, Advocate, 11-5-465, Sherson’s Residency, Flat No. 402, Criminal Court Road, Red Hills, Hyderabad. 2. The Income Tax Officer, Ward-7(1), Hyderabad.

CIT (Appeals)-2, Hyderabad.

The Pr.CIT-2, Hyderabad.

D.R. ITAT, Hyderabad.

Guard File.