SHYAM SINGH,NOIDA vs. ITO, NOIDA

This appeal by assessee has been directed against the order of Ld. CIT(A) III Kanpur (camp Noida, UP)) dated 17.11.2016 for asstt. year 2011-12.

Shyam Singh vs. ITO March, 2014. Copy of the demand notice u/s 156 of the I.T. Act also bears the same dated 25th March, 2014.

The assessee preferred appeal before Ld. CIT(A) and 13th August 3.

2014 was mentioned as the date of service of the relevant demand notice and the assessment order. Ld. CIT(A) asked the assessee to produce evidence in support of service of demand notice / assessment order on him on 13th August, 2014. The assessee submitted that such evidence as with the AO. The AO was therefore directed to bring on record the evidence showing as to on which date the impugned order was served upon assessee. The AO vide his letter dated 19th August, 2016 has informed that the assessment order u/s 143(3) with demand notice u/s 156 was served upon assessee on 25th March, 2013 and in support of it acknowledgement slip duly signed by the assessee was enclosed. Assessee was confronted with these facts vide letter of CIT(A) dated 15th October, 2016 that assessment order and demand notice have been served upon him on 25th March, 2013, however the assessee did not file any response. Therefore, appeal was dismissed in liminee holding it to be time barred.

Counsel for assessee also referred to additional evidences filed at the appellate stage on which remand report of the AO dated 16th May, 2016 has been furnished. He has submitted that appeal was filed within the period of limitation. Ld. Counsel for assessee has however not been able to explain as to how form No. 35 filed before Ld. CIT(A) bearing dated 3rd February, 2012 when assessment order was passed on 25th March, 2014. Ld. CIT(A) also noted that appeal is instituted on 25th March, 2014 which fact is also incorrect because the assessment order and demand notice are dated 25th March, 2014. When assessment order is dated 25th March, 2014, there is no question of filing the appeal before Ld. CIT(A) on 25th March, 2014 itself. Further Ld. CIT(A) noted in the impugned order that as per report of Assessing Officer the assessment order and the demand notice have been served upon assessee on 25th March 2013 and acknowledgement slip is signed by the assessee. Now this fact and report of the AO appears to be incorrect because when assessment order was passed on 25th March, 2014, there is no question of service of the same upon assessee on 25th March, 2013. It therefore appears to me that there are several factual inaccuracies have arises in the matter which should have been decided by the Ld. CIT(A) after verifying the fact from the assessment order and calling the demand report from the AO. Ld. CIT(A) also wrongly mentioned in the impugned order that assessee did not respond to the notice dated 15th October,

Shyam Singh vs. ITO 2016 when assessee filed the reply before him on 7th November, 2016 which bears the receipts stamp of his office. All these factual inaccuracy and without verifying the fact from assessment order clearly shows that Ld. CIT(A) without proper application of mind and without properly going through the record passed the impugned order dismissing the appeal of the assessee in limine. In this view of the matter, I am of the view that matter requires reconsideration at the level of the Ld. CIT(A).

I, therefore, set aside the impugned order and restore the appeal of assessee to the file of the Ld. CIT(A) with direction to re-decide appeal of assessee by giving reasonable sufficient opportunity of being heard to the assessee and the AO. The Ld. CIT(A) shall call for assessment record and after verifying the facts in the light of replies of the assessee and remand report of the AO re-decide the entire issue afresh in accordance with law.

Pronounced in the Open Court.