SHRI NAGARAJ ,MYSORE vs. INCOME TAX OFFICER WARD-1(2), MYSORE

This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals), Mysuru dt.23.07.2018 for the Assessment Year 2009-10.

The assessee has raised the following grounds of appeal :

The facts of the case are that the assessee is a labour contractor. The concluded original assessment was reopened under Section 147 of the Act on the last date of limitation i.e. on 30.03.2016 by issuance of Notice under Section 148 of the Act. The Assessing Officer made certain additions on account of undisclosed contract receipt of Rs.36,48,373 & disallowance under Section 40(a)(ia) of Rs.3,30,400 on account of non-deduction of TDS. The assessee filed an appeal with the CIT (Appeals). The CIT (Appeals) without adjudicating the issues summarily dismissed the appeal for not having enclosed the demand notice under Section 156 and thereby upholding the additions made by the Assessing Officer. The ld. AR relied on the decision in the case of Chelamala Setti Adeyya 54 ITR 339 (AP) which decision was again based on O.A.O.K. Rm. Arunachalam 45 ITR 407 (Madras). Further, the ld. AR submitted that the CIT (Appeals) order is against the principles of natural justice and the order to be quashed. Aggrieved by the order of CIT (Appeals), the assessee is in appeal before us.

There was a delay of 30 days in filing the appeal before the Tribunal. The assessee filed condonation petition explaining the reason that after receiving the appellate order, it was handed over to Authorised Representtive to file appeal before the Tribunal. The A.R. of the assessee prepared the appeal and gave it to the assessee to file before the Tribunal. However, the assessee sent the appeal to the Tribunal old office situated at Kempe Gowda Road, Bangalore instead of Tilak Nagar, Bangalore address. Later the assessee enquired with the Tribunal of Bangalore Benches for obtaining the acknowledgement of receipt of appeal by the Tribunal and also date of hearing. The Tribunal informed the assessee that appeal papers were not received at the office of the Tribunal. Therefore the assessee filed new set of appeal by hand on 31.10.2018. Thus there was a delay of 30 days in filing the appeal. In our opinion, there exists a reasonable cause that the assessee mistakenly posted this appeal to the old address of the Tribunal. Accordingly, we condone the delay of 30 days in filing the appeal before the Tribunal and admit the appeal for adjudication. 5. The order of the Assessing Officer was passed ex-parte under Section 144 of the Act on which the assessee filed an appeal before the CIT (Appeals). The CIT (Appeals) also dismissed the appeal ex-parte on the reason that the appeal filed by the assessee was not accompanied by the valid demand notice. The CIT (Appeals) would have given defect notice and give a fair opportunity of hearing to the assessee to correct the defect noticed by him. Since the order was passed by the A.O. is ex-parte, in the interest of justice, we remand the entire disputed issue to the file of A.O. Officer for fresh consideration.

In the result, the appeal of the assessee is allowed for statistical purposes. Pronounced in the open court on the date mentioned on the caption page.