R. SIVADOSS,NEEDAMANGALAM vs. ITO, WARD-2, THIRUVARUR

This is an appeal filed by the assessee against the order of the Commissioner of Income Tax (Appeals)-1, Trichy, in 14/CIT-A/Try dated 06.05.2019 for the AY 2010-11 and against the quantum addition the assessee preferred a Stay Petition in SP No.247/Chny/2019 and we have taken up both the assessee’s appeal as well as Stay Petition for adjudication.

This appeal filed by the assessee is delayed by 16 days, for which, the assessee has filed Affidavit for condonation of the delay, to which, the Revenue has not raised any serious objection. Consequently, the delay of 16 days in filing of the appeal stand condoned and the appeal is disposed off on merits.

The only grievance of the assessee is that the Ld.CIT(A) has not given any opportunity to substantiate the case of the assessee. Brief facts of the assessee’s case are that the assessee is a engineering contractor and filed his return of income for the AY 2010-11 admitting total income of Rs.9,67,230/-. The AO completed the assessment determining the taxable income of Rs.24,75,932/- by making the disallowance u/s.40(a)(ia) for non-deduction of tax at source on payment of machinery hire charges of Rs.11,95,750/- and 1/3rd of repair & maintenance charges disallowed as vouchers are self-made Rs.3,12,950/-.

On aggrieved, the assessee preferred an appeal before the Ld.CIT(A). The Ld.CIT(A) has given four opportunities to substantiate the case of the assessee but the assessee failed to appear before the Ld.CIT(A). Therefore, the Ld.CIT(A) passed an ex-parte order by confirming the orders passed by the AO.

On being aggrieved, the assessee preferred an appeal before the Tribunal and pleaded for one more opportunity to substantiate his claim before the Ld.CIT(A). It was a submission of the assessee that due to unavoidable circumstances, the assessee/his representative failed to appear before the Ld.CIT(A). He further submitted that he has fair chance to succeed his appeal. Therefore, he pleaded for one more opportunity to substantiate his claim before the Ld.CIT(A).

Per contra, the Ld.DR submitted that the assessee was given sufficient opportunities but the assessee failed to appear before the Ld.CIT(A) to substantiate his claim. Therefore, the orders passed by the Ld.CIT(A) to be confirmed.

We have heard both the parties, perused the materials available on record and gone through the orders of authorities below.

Admittedly, the Ld.CIT(A) has given sufficient opportunities to the assessee but he failed to appear before the Ld.CIT(A). Due to the non- appearance of the assessee’s representative, the Ld.CIT(A) passed an ex- parte order, wherein, it has been held as under:

After considering the orders passed by the Ld.CIT(A), we are of the view that the Ld.CIT(A) has not decided the issue on merits. Therefore, we are of the considered opinion that it is a fit case to grant one more opportunity to the assessee to substantiate its claim. Hence, we remit this issue back to the file of the Ld.CIT(A) and the Ld.CIT(A) is directed to dispose off this appeal afresh after giving opportunity of being heard to the assessee. Consequently, the grounds raised by the assessee are allowed for statistical purposes.

Since we have adjudicated the main appeal of the assessee, the Stay Petition filed by the assessee becomes infructuous and accordingly dismissed.

In the result, the appeal filed by the assessee is allowed for statistical purposes and the Stay Petition filed by the assessee is dismissed.