SHYAM FABRIC MILLS PVT. LTD.,MUMBAI vs. I.T.O. - 4(3)(4), MUMBAI

The first issue in this appeal of assessee is against the order of CIT(A) in giving to the conclusion that the appeal filed is delayed without any proof of service of intimation issued under section 143(1)(a) of the Act. For this assessee has raised the following grounds: - “1. That the learned Assessing Officer has erred in law as well as under the circumstances of the case in not issuing and/or serving any intimation u/s. 143(l)(a) of the Income tax Act, 1961.

That the Commissioner of Income tax (Appeals)-9. Mumbai has erred in law as well as under the circumstance of the case in coming to the conclusion that the appeal was filed late by the Appellant without any proof produced by the Assessing Officer regarding service of intimation and notici6fdemand issued u/s. 143(l)(a) of the Income tax Act. 1961.

That the Commissioner of Income tax (Appeals)-9. Mumbai has erred in law as well as under the circumstances of the case in stating that the appellant has not produced any intimation issued u/s. 143(l)(a) of the Income tax Act. 1961 irrespective of the fact that the same have not been served on your Appellant.”

We have heard the Ld SR DR and gone through the facts and circumstances of the case. The learned SR. DR pointed out that once there is no demand notice and no intimation issued under section 143(1)(a) of the Act, how the appeal will lie. The assessee has challenged the raising of demand before CIT(A) and also adjustment of demand created for AY 1991-92 against the refund of AY 2001-02, which was processed on 24-07-2002 despite the fact that intimation for AY 1998-99 and 1999-2000 no refund was adjusted, the appeal can be treated as delayed appeal and he also filed petition for condonation. The assessee has filed acknowledgement of return for AY 1991-92 and return was filed on 31-12-1991 with the ITO ward 4(2), Mumbai vide acknowledgement No. 01179. When this facts were pointed out to the learned Sr. Departmental Representative, as there is no assistance from the assessee side, because assessee has not represented on the date of hearing of this appeal, he fairly agreed that the matter can be resorted back to the file of CIT(A) for investigation of facts and thereafter take a view accordingly. We are of the view that let the matter be restored back to the file of the CIT(A) to first find out whether any processing was done under section 143(1)(a) of the act and without intimation under section 143(1)(a) of the Act how the appeal was admitted and condonation of delay was decided. Although the delay was not condoned and the appeal was not admitted. In term of the above, we restore the matter back to the file of the CIT(A) for giving a factual finding on the intimation issued under section 143(1)(a) of the Act against the return filed by the assessee for the relevant AY and accordingly, decide the issue. The appeal of the assessee is allowed for statistical purposes.

In the result, the appeal assessee is allowed for statistical purposes.