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Income Tax Appellate Tribunal, “SMC – A” BENCH : BANGALORE
Before: SHRI SUNIL KUMAR YADAV
Date of hearing : 15.11.2017 Date of Pronouncement : 15.12.2017 O R D E R These appeals are preferred by the assessee against the order of the CIT(Appeals) inter alia on common grounds. Therefore, these appeals were heard together and are disposed of through this consolidated order. For the sake of reference, the grounds raised in are extracted hereunder:-
“1. The order of the CIT (A) in so far as it is against the appellant is opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case.
The appellant denies himself liable to be assessed to a total income of Rs. 23,80,140/- as against the total income returned by the appellant of Rs. 9,08,035/- for the impugned assessment year 2008-09 on the facts and circumstances of the case.
3. The learned CIT(A) was not justified in not condoning the delay of 179 days in filing appeal, which was due to reasonable cause on the facts and circumstances of the case. 4. The learned CIT(A) was not justified in not appreciating that the appellant was ill advised that there was no merit in appealing the order passed and only upon receiving fresh advice has preferred to challenge the additions made in the order of assessment, on the facts and circumstances of the case. 5. The learned CIT(A) was not justified in passing an exparte order by dismissing the appeal of the appellant, without affording sufficient opportunity of being heard, which is against the principles of natural justice on the facts and circumstances of the case. 6. Grounds on reopening : a) The notice issued under section 148 of the Act was bad in law on the facts and circumstances of the case. b) The learned Assessing Officer was not justified re-opening the assessment since the assessing officer did not have 'reason to believe' that income has escaped assessment for the A.Y. 2008-09 on the facts and circumstances of the case. c) The learned CIT(A) was not justified in not appreciating that the learned assessing Officer has not assumed proper jurisdiction due to the defective notice on the facts and circumstances of the case. d) The order of assessment passed by the learned assessing officer under Section 143(3) r.w.s 147 of the Act is bad in law since the mandatory conditions as envisaged in the Act to assume jurisdiction under section 148 did not exist or having not been complied with and consequently, the reassessment requires to be cancelled on the facts and circumstances of the case.
e) The order of reassessment is further bad in law and void ab initio as the learned assessing officer had no reason to believe that the income of the Appellant has escaped assessment and the said reasons amounted to merely reasons to suspect on the facts and circumstances of the Appellant's case. f) The order of reassessment is further bad in law and void ab initio for want of mandatory sanctions of competent authority and if obtained was not in accordance with law on the facts and circumstances of the case.
Grounds on merits of the matter : a) The learned CIT(A) was not justified in ignoring the fact that an g estimation of income was improper and the incomes returned by the appellant ought to have been accepted on the facts and circumstances of the case. b) The learned CIT(A) was not justified in ignoring the fact that a substantial portion of the amounts were paid to institutions and a small percentage was retained by the appellant on the facts and circumstances of the case. c) The learned CIT(A) was not justified in ignoring the fact that the appellant has incurred expenditure in the normal course of earning commission and the same was to be allowed as an expenditure on the facts and circumstances of the case. d) The learned CIT(A) was not justified in ignoring that the estimate of income was on the higher side and was to be substantially reduced on the facts and circumstances of the case.
The appellant denies the liability to pay interest under section 234B and 234C of the Act in view of the fact that there is no liability to additional tax as determined by the learned assessing officer. Without prejudice the rate, period and on what quantum the interest has been levied are not discernable from the order and hence deserves to be cancelled on the facts and circumstances of the case.
The appellant craves leave to add, alter, modify, delete or substitute any or all of the grounds and to file a paper book at the time of hearing the appeal.
In view of the above and other grounds that may be taken at the time of the hearing the appeal, the appellant prays that the appeal be allowed in the interest of justice and equity.” 2. During the course of hearing, the ld. Counsel for the assessee has contended that the CIT(Appeals) without appreciating the arguments of the assessee has dismissed the appeal being barred by limitation. The reasons for condoning the delay in filing of the appeal was explained by contending that after the assessment order, the assessee’s financial position was very weak and he was advised by his legal consultant to wait for some time and file the appeal as and when the financial position is strong. Therefore, the delay in filing of the appeal was on the basis of legal advice and hence it should be condoned. The CIT(Appeals) did not adjudicate the grounds for the delay in filing of the appeal and dismissed the appeal being barred by limitation. The ld. Counsel for the assessee has contended that since the assessee is not responsible for the delay in filing of the appeal and he has been misled by the professionals, therefore, the delay should be condoned and the appeal be admitted for hearing.
The ld. DR placed reliance upon the order of the CIT(Appeals).
Having carefully examined the orders of lower authorities in the light of rival submissions, I find that the assessee has sufficient reasonable cause for the delay in filing the appeal and the CIT(Appeals) ought to have accepted the explanation of the assessee for condonation of the delay, but he did not do so. I am, however, of the opinion that there was reasonable cause for the delay in filing the appeal. Therefore, I condone the delay in filing of the appeal before the CIT(Appeals). Accordingly, I set aside the order of the CIT(Appeals) and restore the matter to his file with a direction to readjudicate the issues on merit, after affording opportunity of being heard to the assessee.
In the result, the appeals of the assessee are allowed for statistical purposes.
Pronounced in the open court on this 15th day of December, 2017.
( SUNIL KUMAR YADAV) Judicial Member Bangalore, Dated, the 15th December, 2017.