M/S. YANTTI BUILDCON PRIVATE LIMITED,2012-13 vs. INCOME TAX OFFICER, WARD - 2(1)(1), BANGALORE

The assessee has filed an appeal against the order of learned Commissioner of Income Tax (Appeals), Bangalore passed under Section 144(1)(b) and 250 of the Income Tax Act, 1961.

At the time of hearing, none appeared on behalf of the assessee or adjournment petition was filed and it was found that Notice of hearing was sent by Registered Post A.D. as per the address mentioned in Form 36 and we heard submissions of the learned Departmental Representative. 3. The Brief facts of the case are that the assessee is engaged in the business of construction of Buildings and filed the Return of Income for the Assessment Year 12-13 on 29.09.2012 with total income of Rs.74,380 and the Return of Income was processed under Section 143(1) and subsequently the case was selected for scrutiny and Notices were issued.143(2) and 142(1) of the Act along with questionnaire. In compliance, the learned Authorised Representative of the assessee appeared and sought time and the Assessing Officer issued Notice referred at page 2 of the assessment order but there was no compliance. Since the assessee has not complied with the Notice in the course of assessment proceedings. The Assessing Officer based on receipt of the information on record found that the assessee has deducted TDS under provisions of Section 194A of the Act and the TDS amount was not deposited before the end of financial year ending 31.12.2012. The Assessing Officer applying the provisions of Section 40(a)(ia) of the Act made addition. Similarly disallowance of Rs.5,08,771 in the nature of penal interest and further the assessee has not deducted TDS on payments made to sub-contractors Rs.10,11,000 and assessed the total Rs.97,73,505 and passed under Section 144(1)(b) of the Act dt.20.03.2015. Aggrieved by the assessment order, the assessee filed an appeal with the CIT(Appeals). Whereas the CIT(Appeals) has fixed the appeal for hearing on 19.2.2019 and none appeared on the said date but written submissions were filed whereas the CIT(Appeals) has referred to the order of Assessing Officer passed under Section 144 of the Act as the assessee has not complied with the directions. In the appellate proceedings, the assessee has filed an application for admitting additional evidence under Rule 46A of the IT Rules. The CIT(Appeals) dealt on this disputed issue at pages 5 & 6 and finally rejected the additional evidence as the assessee was provided adequate opportunities of hearing in the assessment proceedings and dismissed the assessee's appeal. Aggrieved by the CIT (Appeals) order the assessee has filed an appeal with the Tribunal. None appeared on behalf of the assessee and heard the learned Departmental Representative supporting the orders of CIT(Appeals).

We on perusal of the material we found that the CIT(Appeals) has dealt on the merits of the case, whereas the additional evidence under Rule 46A was filed by the assessee’s with submissions referred at para 6.1 of the CIT (Appeals) order with the observations of the CIT(Appeals) that the documents are defective and for the first time they are filed in the appellate proceedings. We are of the opinion that the additional evidence play a vital role in the decision making. But there is no proper compliance by the assessee before lower authorities which cannot be overlooked. Accordingly, we restore the entire disputed issue to the file of CIT (Appeals) subject to condition that the assessee shall pay Rs.5,000 as cost to the Income Tax Department within a month from the date of receipt of the order and hence we set aside the order of CIT (Appeals) and remit the entire disputed issue to the file of CIT (Appeals) to adjudicate afresh and assessee should be provided adequate opportunity and shall co-operate in submitting the information for early disposal of the appeal and allow the grounds of appeal