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Income Tax Appellate Tribunal, “SMC-C” BENCH : BANGALORE
Before: SHRI ARUN KUMAR GARODIA
M/s. Mysore Dutta Polymers Pvt. Ltd., The Assistant Commissioner 228, Premier Studio, of Income Tax, Vs. Jayalakshmipuram, CPC, Mysore – 570 012. Bangalore. PAN: AABCM1422A APPELLANT RESPONDENT Assessee by : Shri S. Loknath, CA Revenue by : Dr. S. Palani Kumar, Addl. CIT (DR) Date of hearing : 15.10.2018 Date of Pronouncement : 17.10.2018 O R D E R
Per Shri A.K. Garodia, Accountant Member
This appeal is filed by the assessee and the same is directed against the order of ld. CIT(A), Mysore dated 22.06.2018 for Assessment Year 2015-16.
The grounds raised
by the assessee are as under. “1. The Appellant submits that the demand is raised as non payment of dividend tax with in the stipulated time.
2. The Appellant submits that the Dividend was declared on 30th September and since the amount of Advance tax and TDS were substantial to cover the tax on the regular income and the dividend tax no additional amount was paid.
3. The Assessment order was served demanding the interest on delay in payment of dividend tax.
4. The Appeal memorandum filed before the Commissioner (Appeals) had accompanied the assessment order by CPC. where no demand note was enclosed.
5. The Apellant submits that the Assessment order itself has a note bearing no.3 stating ."in case of demand, this intimation may be treated as Notice of Demand u/s 156 of the Income Tax Act,1961. Accordingly, you are requested to pay………”
6. The Appellant submits that the Ld, Commissioner (Appeals) has not seen the Assessment order and has not read the note whereby has asked to furnish the Demand note u/s 156 of the Act or asked to file an affidavit that the same is not received.
7. The order passed by the Appellate authority since has not looked into the detail note in the assessment order , as a result citing the circular and dismissing the appeal is not in accordance to the Page 2 of 3 provisions of the Act and hence is liable for setting aside in the interest of Equity and Justice.
The Appellant submits that the appeal was filed for deleting the interest charged for the late payment of the dividend tax , whereas the assessment order shows an adjustment of the refund against the demand of the said interest, thereby the order itself is contradictory.
The Appellant submits that once the demand is adjusted the question of interest does not arise and hence the order passed u/s 143(1) itself is erroneous and requires to be set aside.
The Appellant submits that the similar issue for the Asst year 2010-11 was remanded for giving an opportunity to explain the details. The demand notice was not furnished on that appeal also as the same note was shown at the time of hearing.
Without prejudice to above, it is further submitted that any addition made in the income or not considered the payment is required to be intimated by notice so that can be explained, on that ground also it amounts to violation of principle of Natural Justice and requires to be set aside.”
At the very outset, it was submitted by ld. AR of assessee that the order passed by CIT(A) is ex-parte qua the assessee. He further submitted that even in this ex-parte order, ld. CIT(A) has dismissed the appeal of the assessee on this basis that the appeal is defective because the assessee has not filed original notice of demand issued u/s. 156 of IT Act or a certified copy thereof. He submitted a copy of intimation received from DCIT, CPC dated 06.12.2016 and pointed out that in this intimation, it has been stated that this intimation may be treated as notice of demand u/s. 156 of IT Act and assessee was requested to pay the entire demand within 30 days from receipt of this intimation. He submitted that this intimation received from DCIT, CPC was submitted before ld. CIT(A) along with Form No. 35 and hence, this is not correct to say that the assessee has not submitted the copy of demand notice along with Form No. 35 filed before CIT(A). He submitted that the matter should be restored back to the file of CIT(A) for fresh decision. The ld. DR of revenue supported the order of CIT(A).
I have considered the rival submissions. I also find that as per the impugned order, ld. CIT(A) has dismissed the appeal of the assessee as defective and without admitting the same. The reason given by ld. CIT(A) for saying that the appeal is defective is this that the assessee has not furnished either the original notice of demand issued u/s. 156 of IT Act or a certified copy thereof along with Form No. 35 filed before him. As per the Page 3 of 3 intimation copy dated 06.12.2016 filed before the Tribunal, it has been stated that this intimation may be treated as notice of demand u/s. 156 of IT Act. Hence I feel it proper to restore back this matter to the file of CIT(A) for a decision on merit after admitting the appeal of the assessee because at least now, the notice of demand u/s. 156 of IT Act is made available. Hence, the order of CIT(A) is set aside and the matter is restored back to the file of CIT(A) for decision on merit. In view of this decision, no adjudication is called for regarding the merit of the case at the present stage.
In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on the date mentioned on the caption page.