SMT NALINI PRABHU,BANGALORE vs. INCOME TAX OFFICER WARD-6(3), BANGALORE

O R D E R

Per Shri A.K. Garodia, Accountant Member

by the assessee are as under. “1. The order of the learned Commissioner of Income-tax [Appeals]- 1, Bengaluru in so far it is against the appellant is opposed to law, weight of evidence, facts and circumstances of the Appellant's case.

2. The appellant denies herself liable to be assessed on a total income of Rs. 14,80,664/-determined by the learned assessing officer and confirmed by the learned Commissioner of Income-tax [Appeals], as against the total income of Rs. 2,50,664/-declared by the appellant on the facts and circumstances of the case.

3. The ex-parte order passed by the learned Commissioner of Income- tax [Appeals] is bad in law as the appellant was not afforded a reasonable opportunity of hearing, which is in grave violation of principles of natural justice on the facts and circumstances of the case.

4. The learned Commissioner of Income-tax [Appeals] is not justified in confirming the additions made by the learned Assessing Officer amounting to Rs. 12,30,000/- which was added as unexplained cash credits by invoking the provisions of section 68 of the Act, on the facts and circumstances of the case.

7. Without prejudice to the right to seek waiver as per the parity of reasoning of the decision of the Hon’ble Apex Court in the case of Karanvir Singh 349 ITR 692, the Appellant denies itself liable to be charged to interest under section 234 A & 234 B of the Income Tax Act under the facts and circumstances of the case. Further the levy of interest under section 234 A & 234 B of the Act is also bad in law as the period, rate, quantum and method of calculation adopted on which interest is levied are all not discernible and are wrong on the facts of the case.

urged above.

9. For the above and other grounds to be urged during the hearing of the appeal the Appellant prays that the appeal be allowed in the interest of equity and justice.”

3. This appeal is filed late by the assessee and the delay is of 93 days. The assessee has submitted an application for condonation of delay along with an affidavit. In the same, it is stated that the order of CIT(A) order dated 31.07.2017 was received by the assessee on 04.09.2017 and therefore, the appeal against this order was to be filed before the Tribunal on or before 04.10.2017 but the same was filed on 04.01.2018and therefore, there is delay of 93 days in filing the appeal. Regarding the reasons for this delay, it is submitted that after the receipt of this appellate order in September 2017, the assessee could not file the appeal in time because the Chartered Accountant was preoccupied with his tax audit work and could not guide the assessee as regard to the next course of action. Later on, the CA asked the assessee to approach the present counsel and asked the assessee to prefer an appeal before the Tribunal. It is submitted that under these facts, thisdelay of 93 days should be condoned. The ld. DR of revenue submitted that there is no reasonable cause shown by the assessee regarding this delay of 93 days and therefore, the delay should not be condoned.

5. At the very outset, it was submitted by ld. AR of assessee that the impugned order of CIT(A) is ex-parte qua the assessee. He submitted that the notices issued by CIT(A) were delivered at the address of the assessee but since the assessee was out of country, she did not receive the notices and because of this reason, there was no compliance before CIT(A) and therefore, in the interest of justice, the matter may be restored back to the file of CIT(A) for fresh decision after providing adequate opportunity of being heard to assessee. He submitted that if the matter is restored back to the file of CIT(A), he undertakes that proper compliance would be made before CIT(A). The ld. DR of revenue submitted that various opportunities were provided by CIT(A) and therefore, assessee does not deserve any further opportunity.

6. I have considered the rival submissions. I find that the appeal was filed on 08.02.2008 and the first notice was issued for hearing on 13.01.2011 and the second notice was issued for hearing on 27.03.2017 and the last notice was issued on 17.07.2017 posting the hearing on 24.07.2017 and the impugned order of CIT(A) was passed on 31.07.2017. As per the order of CIT(A), these notices were served but no one appeared. Regarding non-appearance of the assessee before the CIT(A), it was explained by ld. AR of assessee before me that the assessee was out of country during March 2017 to July 2017 and therefore, no compliance could be made before CIT(A). The ld. AR of assessee has undertaken that if the matter is restored back to the file of CIT(A) for providing opportunity to assessee, proper compliance will be made before CIT(A). Considering the facts of the present case and in the interest of justice, I set aside the order of CIT(A) and restore the matter back to the file of CIT(A) for fresh decision after providing adequate opportunity of being heard to both sides. In view of this decision, no adjudication is called for on merit at the present stage.

Order pronounced in the open court on the date mentioned on the caption page.