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Income Tax Appellate Tribunal, MUMBAI BENCH “SMC”, MUMBAI
Before: SHRI G.S.PANNUShri Pushkar Gupta,
The captioned appeal filed by the assessee pertaining to assessment year 2010-11 is directed against an order passed by CIT(A)- 46, Mumbai dated 04/12/2014, which in turn arises out of an order passed by the Assessing Officer under section 144 of the Income Tax Act, 1961 (in short ‘the Act’) dated 28/03/2013.
In this appeal, the assessee has raised the following Grounds of appeal:- “1.1 On facts and in law. the learned Commissioner of Income-tax (Appeals) [hereinafter referred to as "Ld. CIT(A)"] had failed to appreciate that first notice u/s.143(2) was served beyond the time limit prescribed in the Income-tax Act. hence order passed u/s.144 by the learned Assessing Officer (LAO) is bad-in-Iaw.
1.2 On facts and in law. the Ld. CIT(A) had failed to appreciate that receipt of notice u/s.143(2) was brought to the notice of Authorized Representative (AR) of the appellant after the hearing before Ld. ClT(A) on 03.12.2014 and accordingly. immediately this fact was informed to the Ld. CIT(A) on the same date. As such. no adverse inference should be taken by the learned CIT(A) in this regard.
2. On facts and in law. the Ld. CIT(A) ought to have considered the submissions vide letter No. Nil dated 03.12.2014 as additional Ground of Appeal
and decided the appeal accordingly.
3. On facts and in law. the Ld. CIT(A) had erred in not considering the written submissions submitted during the hearing on 03.12.2014 vide letter No.SH/IT dated 01.12.2014 while passing the appellate order dated 04.12.2014. Under the facts and circumstances of the matter. Ld. CIT(A) ought to have considered the written submissions submitted during the hearing on 03.12.2014 and allowed the relief accordingly.
4. On facts and in law. the Ld. CIT(A) had erred in not considering the exemption claimed amounting to Rs.1.69.680/- u/s.l0(13A) of the LT. Act. Under the facts and circumstances of the matter. he ought to have allowed exemption claimed u/s.l O( 13A) amounting to Rs.l.69.680/-.
5. On facts and in law. the Ld. CIT(A) had erred in not allowing loss from House Property amounting to Rs.45.382/- without assigning any reason. Under the facts and circumstances of the matter. he ought to have allowed the loss from House Property of Rs.45.382/-.
6. On facts and in law. the learned CIT(A) erred in stating that Ground No.4 is not pressed and the same is treated as dismissed even though in the written submissions vide letter No.SH/IT dated 01.12.2014. the AR of the appellant has contended that interest on SB Account comes to Rs.463.71/- and not Rs.25.000/- as estimated by the LAO in the impugned assessment order. Under the facts and circumstances of the matter. Ld. CIT(A) ought to have directed the LAO to tax only Rs.463.71 as interest on SB Account instead of Rs.25.000/- estimated by LAO.”
Although assessee has raised multiple grounds of appeal, but at the time of hearing Ld. Representative for the assessee made a preliminary point which is to the effect that the notice under section 143(2) of the Act was served on the assessee beyond the period stipulated in law. Ld. Representative for the assessee explained that appellant is an individual employed with HDFC Bank Ltd. and had filed return of income for assessment year 2010-11 declaring total income of Rs.33,36,250/- on 17/06/2010. The assessment was finalized by the Assessing Officer as a best judgment assessment under section 144 of the Act after noticing non-attendance on behalf of the assessee and the total income was assessed at Rs.41,13,150/-. Ld. Representative for the assessee pointed out that before the CIT(A) assessee has raised various issues with respect to the addition made, by furnishing some additional evidences, which was not entertained by the CIT(A). Ld. Representative for the assessee also pointed out that at the stage of the assessment proceedings, the matter was not properly handled by the assessee, which had resulted in making of a best judgment assessment on ex- parte basis. Be that as it may, according to him, before the CIT(A) assessee had raised the issue as to whether or not the notice under section 143(2) of the Act was served as per the provisions of law, though at the fag end of the proceedings, which has been unjustly rejected without examination.
4. In this background, the Ld. Representative for the assessee pointed out that the assessee would be satisfied, if the matter is restored back to the file of Assessing Officer for examination afresh with regard to assessee’s claim for non-receipt of notice under section 143(2) of the Act within the prescribed period in law and other issues.
5. Ld. Departmental Representative pointed out that the issue of defective service of notice under section 143(2) of the Act was raised by the assessee before CIT(A) in a belated stage after the hearing, but through a communication in ‘Tapal’. Under these circumstances, the CIT(A) has not examined the contention.
I have carefully considered the preliminary objection raised by the assessee. At page 27 of the Paper Book is placed a copy of the notice under section 143(2) of the Act dated 26/8/2011, which is addressed to the assessee, but the address mentioned is not the address stated in the return of income. The claim set-up by the assessee is that such notice was not received at the stated address but was received by the assessee personally on 10/10/2011 from the Assessing Officer. For this reason it is sought to be pointed out that the plea of the assessee for non-receipt of notice within the stipulated period be examined on merits. The CIT(Appeals) in para 3.1 of his order does acknowledge that such point was raised before him but through a communication of the assessee received in ‘Tapal’. In my considered view, the plea of the assessee has been shut-out by the CIT(Appeals) without considering it on the merits. Therefore, in the present situation, I find enough merit in the plea of the assessee for remanding the matter back to the file of Assessing Officer for examining the plea of the assessee on merits in accordance with law. The Assessing Officer shall also consider any other plea that the assessee may raise in support of his return of income. After considering the submissions put-forth by the assessee, the Assessing Officer shall proceed to pass an order afresh in accordance with law.