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Income Tax Appellate Tribunal, “SMC-C” BENCH : BANGALORE
Before: SHRI ARUN KUMAR GARODIA
O R D E R Per Shri A.K. Garodia, Accountant Member Both these appeals are filed by the assessee which are directed against two separate orders of ld. CIT(A)-1, Bangalore both dated 23.01.2018 for Assessment Years 2007-08 and 2009-10. Both these appeals were heard together and are being disposed of by way of this common order for the sake of convenience.
The grounds raised
by the assessee for Assessment Year 2007-08 in are as under. “1. That the order of the learned Commissioner of Income Tax (Appeals) is prejudicial to the interests of the appellant, is bad and erroneous in law and against the facts and circumstances of the case.
2. That the learned Commissioner of Income Tax (Appeals) ought to have condoned the delay of 92 days in filing the appeal.
3. That the learned Commissioner of Income tax (Appeals) erred in law and on facts in dismissing the appellant without giving proper opportunity to the appellant.
That the learned Commissioner of Income tax (Appeals) ought to have given an opportunity to Authorised Representative by issuing notice before disposing off the appeal.
5. That the learned Commissioner of Income tax (Appeals) erred in law and on facts in not communicating the date of hearing through e- mail even though the details of appellant's legal representative was available on record. 6. That the learned Commissioner of Income tax (Appeals) erred in law and on facts in not disposing the appeal on merits. 7. That the learned Commissioner of Income Tax (Appeals) ought to have held that the order u/s 154 of the Act is passed after the end of 4 years from the end of the financial year in which the intimation u/s 143(1) of the Act was issued and therefore, the order u/s 154 is time barred. 8. That the learned Commissioner of Income Tax (Appeals) ought to have held that the order u/s. 154 is passed without giving a notice to the appellant and therefore, the said order is liable to be quashed. 9. Without prejudice to the Grounds No. 5 & 6, the learned Commissioner of Income Tax (Appeals) ought to have deleted the disallowance of interest on the ground that the matter issue is debatable one and is not capable of being rectified u/s 154 of the Act. 10. Without prejudice to the above grounds, the learned Commissioner of Income Tax (Appeals) ought to have disagreed with the finding of the learned assessing officer that the interest is disallowable just because the overdraft facility was availed against the FCNR deposits without appreciating the fact that the said overdraft has been utilized for the purpose of acquisition of income from house property of the income whereof is offered as tax. Each of the above grounds is without prejudice to one another and the appellant craves leave of the Hon'ble Income Tax Appellate Tribunal, Bangalore to add, delete, amend or otherwise modify one or more of the above grounds either before or at the time of hearing of this appeal.”
The grounds raised
by the assessee for Assessment Year 2009-10 in are as under.
1. That the order of the learned Assessing Officer in so far it is prejudicial to the interests of the appellant, is bad and erroneous in law and against the facts and circumstances of the case.
2. That the learned Commissioner of Income Tax (Appeals) ought to have condoned the delay of 92 days in filing the appeal.
3. That the learned Commissioner of Income tax (Appeals) erred in law and on facts indismissing the appellant without giving proper opportunity to the appellant. 4. That the learned Commissioner of Income tax (Appeals) ought to have given an opportunity to Authorised Representative by issuing notice before disposing off the appeal. 5. That the learned Commissioner of Income tax (Appeals) erred in law and on facts in not communicating the date of hearing through e- mail even though the details of appellant's legal representative was available on record. 6. That the learned Commissioner of Income tax (Appeals) erred in law and on facts in not disposing the appeal on merits. 7. That the learned assessing officer erred in law and on facts in passing the order u/s 154 of the Act without giving a notice to the appellant and therefore, the said order is liable to be quashed. 8. Without prejudice to the Grounds No. 5, the learned assessing officer erred in law and on facts in holding that the disallowance of interest is a matter which is capable of being rectified u/s 154 of the Act ignoring the fact that the issue is debatable. 9. Without prejudice to the above grounds, the learned assessing officer erred in law and on facts in holding that the interest is disallowable just because the overdraft facility was availed against the FCNR deposits without appreciating the fact that the said overdraft has been utilized for the purpose of acquisition of income from house property of the income whereof is offered as tax. Each of the above grounds is without prejudice to one another and the appellant craves leave of the Hon'ble Income Tax Appellate Tribunal, Bangalore to add, delete, amend or otherwise modify one or more of the above grounds either before or at the time of hearing of this appeal.”
4. At the very outset, it was submitted by ld. AR of assessee that both the orders passed by CIT(A) are ex-parte qua the assessee. He further submitted that it is noted by CIT(A) in Para 2 of his order in both years that only one opportunity was provided by him to the assessee to appear before him i.e. on 23.01.2018
and on the same date, he passed the orders for both the years. He further pointed out that it is also noted by CIT(A) in the same para that notice issued by him to assessee has come back unserved with the remarks of postal authorities that the “addressee left and returned to the sender”. He submitted that under these facts and in the interest of justice, the matter should be restored back to the file of CIT(A) for fresh decision after providing reasonable opportunity of being heard to assessee. The ld. DR of revenue supported the order of CIT(A) in both the years.
I have considered the rival submissions. I find that in both the years, it is noted by CIT(A) in para 2 of his order that an opportunity was provided to assessee for hearing on 23.01.2018 and notices sent to assessee had come back unserved with the remarks of postal authorities that the “addressee left and returned to the sender”. This is also seen that it is also stated by CIT(A) in same para of his order that appeal is filed late by 92 days and the assessee has not made any request for condonation of delay. Before me, it was submitted that application was made before CIT(A) for condonation of delay and the same was filed along with the appeal memo itself filed before CIT(A) in Form No. 35. He filed a copy of the said request letter for condonation of delay filed before CIT (A) in which it is stated that the assessee is NRI and is settled in USA and hence, was busy as well as unaware of the requirement about filing of appeal before CIT (A). Hence, I condone the delay in filing the appeal before CIT (A) in both years. This is also seen that the CIT (A) has not decided the issue on merit. He has dismissed the appeal of the assessee in limine by following the Tribunal order in the case of CIT Vs. Multiplan India Ltd. as reported in 38 ITD 320. In my considered opinion, even if the appeal is decided ex-parte qua the assessee, the same should be decided on merit as per material available on record. Considering all these facts, I feel it proper to restore the matter back to the file of CIT(A) for decision on merit after providing adequate opportunity of being heard to both sides. I order accordingly. In view of this decision, no adjudication is called for regarding the merit of the case at the present stage.
In the result, both the appeals filed by the assessee are allowed for statistical purposes. Order pronounced in the open court on the date mentioned on the caption page.