MIHIR ENTERPRISES,,THANE vs. INCOME-TAX OFFICER, WARD - 1(2),, SOLAPUR

आयकर अपीलीय अिधकरण पुणे �यायपीठ एक-सद�य मामला पुणे म� IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “SMC”, PUNE सु�ी सुषमा चावला, �याियक सद�य के सम� BEFORE MS. SUSHMA CHOWLA, JM आयकर अपील सं. / ITA No.2798/PUN/2017 िनधा�रण वष� / Assessment Year : 2008-09 Mihir Enterprises, Flat No.701, Vardhaman Tower Co-op. Bhaskar Colony, Navpada, Thane. अपीलाथ�/Appellant PAN: AACFM1641H …. Vs. The Income Tax Officer, …. ��यथ� / Respondent Ward- 1(2), Solapur. अपीलाथ� क� ओर से / Appellant by : Shri P. S. Shingte ��यथ� क� ओर से / Respondent by : Shri Rajesh Gawali घोषणा क� तारीख / सुनवाई क� तारीख / Date of Pronouncement: 28.12.2018 Date of Hearing : 17.12.2018 आदेश / ORDER PER SUSHMA CHOWLA, JM: The appeal filed by the assessee is against the order of CIT(A)-7, Pune dated 12.05.2017 relating to assessment year 2008-09 against order passed under section 144 of the Income-tax Act, 1961 (in short ‘the Act’). 2. The assessee has raised the following grounds of appeal :- 1. On the facts and in the circumstances of the case and in law the Learned Assessing Officer erred in rejecting the appeal for non- attendance without realizing the fact that appellant had reasonable

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cause for not attending the appeal and therefore the appeal may kindly be restored to the file of CIT(A) after offering an opportunity of hearing. 2. On the facts and in the circumstances of the case and in law the Lower authorities have erred in estimating the income at 8% without appreciating the circumstances under which appellant was not able to presents its account in the course of scrutiny. Your appellant prays for appropriate relief. The appellant craves for to leave, add, alter, modify, delete above ground of appeal before or at the time hearing, in the interest of natural justice.” 3. The present appeal filed by the assessee is after a delay of 142 days. The learned Authorized Representative for the assessee has filed an affidavit explaining the reasons for condoning the delay in filing the appeal late. The reasons of the said affidavit read as under :- “Affidavit I,…………. I am an individual and we have filed our return of income for A.Y. 2008-09. For Asst Year 2008-09, my case was selected for scrutiny and orders u/s 144, 271B, 271(1)(c) of the Income Tax Act, 1961 were passed by the ITO, Ward 1(2), Solapur. Against these orders, I had preferred an appeal before CIT(A)-7, Pune, where Hon’ble CIT(A)-7, Pune has passed the ex-parte order dated 12/05/2017 for nonattendance of hearing. In the year 2005-06 the firm had received a government contract at Chhattisgarh (Government Prime Minister Rural Road Scheme) and after getting the contract, we had started the work. The work was in remote rural area. Due to labour problems and also due to opposition of local people and it was not impossible for me to complete the work. When the problem increased beyond our capacity, we had to leave the office and the premises on urgent basis as there was constant threatening by local people. This resulted in abandoning the site office and the record remained at the office located near Kawardha, District- Kawardha, State-Chhattisgarh and ultimately we could not complete the works and left the tender work. The Government Department has also not paid us the payment of the work completed and authorities have fortified the security deposit accordingly, therefore we have incurred huge losses. Thereafter, we have closed the activity forcefully and came to Maharashtra. Thereafter me and my partner namely; Mr. Niranjan Wadhavkar, who is now working as a employee in private firm. I, myself have no other activity. Previously the address of the firm was at Solapur, Maharshtra, I reside at Thane from beginning and other partner Shri Niranjan who used to stay in

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Solapur has left Solapur and since 2007-08 has shifted to Thane. Due to this changeover, we have not received notices, intimation orders of Income Tax department. Due to change in address of communication we could not receive the order in time, this has resulted into delay in filing the appeal before Hon’ble Tribunal. Due to this reason there was delay of approximately 130 days. With this affidavit I most humbly pray before your honors to condone the delay and admit the appeal.” 4. In view of the reasons mentioned in the aforesaid affidavit, I find merit in the plea of the assessee. Hence, the delay in filing the appeal late by 142 days is condoned. 5. Briefly, in the facts of the case, the Assessing Officer took up the case for scrutiny but due to non-cooperation of the assessee, the assessment order was passed under section 144 of the Act. The assessment order itself reflects that the notice of hearing could not be served upon the assessee. The assessee has explained that because of huge losses and labour problems it could not finish the Government Contract of Chhattisgarh and it had to close the activity forcefully and shift to Maharashtra. The assessee was working as an employee in the Private Firm and had pointed out that because of the aforesaid reasons there was non-appearance before the Assessing Officer. Similarly, before the CIT(A) also there was non-appearance. 6. In the totality of the facts and circumstances of the case, it is a fit case for remanding back to the file of the Assessing Officer. Accordingly, I remand the issue back to the file of the Assessing Officer, who shall allow reasonable opportunity of hearing to the assessee and complete the assessment de-novo. The assessee is directed to appear before the Assessing Officer and furnish the information and also co-operate in the assessment proceedings.

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Accordingly, the grounds of appeal by the assessee are allowed for statistical purposes. 7. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced on this 28th day of December, 2018.

Sd/- (SUSHMA CHOWLA) �याियक सद�य / JUDICIAL MEMBER पुणे / Pune; �दनांक Dated : 28th December, 2018. Sujeet आदेश क� �ितिलिप अ�ेिषत/Copy of the Order is forwarded to : 1. अपीलाथ� / The Appellant; 2. ��यथ� / The Respondent; The CIT(A)-7, Pune; 3. 4. The CCIT, Pune; िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, पुणे, एक-सद�य 5. मामला / DR ‘SMC’, ITAT, Pune; गाड� फाईल / Guard file. 6. आदेशानुसार/ BY ORDER, स�यािपत �ित //True Copy// व�र� िनजी सिचव / Sr. Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune