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Income Tax Appellate Tribunal, VISAKHAPATNAM “SMC” BENCH, VISAKHAPATNAM
Before: SHRI DUVVURU RL REDDY, HON’BLE
अपीलधथी की ओर से/ Appellant by : Shri C.Subrahmanyam, AR प्रत्यधथी की ओर से / Respondent by : Dr.Aparna Villuri, DR सुनवधई की तधरीख / Date of Hearing : 04.01.2024 घोर्णध की तधरीख/Date of Pronouncement : 10.01.2024 आदेश /O R D E R Per Shri Duvvuru RL Reddy, Judicial Member : Condonation of Delay : This appeal is filed by the assessee against the order of Commissioner of Income Tax (Appeals) [CIT(A)], National Faceless Appeal Centre (NFAC), Delhi in DIN & Order No.ITBA/ NFAC/S/250/2023-24/1054521735(1) dated 21.07.2023, arising out of order passed u/s 143(3) of the Income Tax Act, 1961 (in short ‘Act’) dated 30.12.2019 for the Assessment Year (A.Y.) 2017-18 with the delay
Murali Krishna Kommineni, Srikakulam of 71 days. The assessee filed a petition for condonation of delay, submitting that when the assessee was on the way to his counsel’s office to sign the appeal papers, he met with an accident and his left ankle got fractured. The assessee was advised bed rest for four weeks and during this period the assessee’s idea of going to counsel’s office for signing the appeal papers slipped out of his mind. The assessee came to know the fact when he got a call from his counsel’s office to sign the appeal papers. Without further delay, the assessee signed the appeal papers on 19.11.2023 and filed the same before the Tribunal on 30.11.2023 with the delay of 71 days, which was neither due to his negligence or lack of diligence. He furnished a Doctor’s certificate in support of his petition and pleaded me to condone the delay and admit the appeal for hearing. It is evident from the records that the order of the Ld.CIT(A) was passed and served on the assessee on 21.07.2023. As such, the appeal against the order ought to have been filed on or before 20.09.2023, however, the assessee could file appeal only on 30.11.2023 with the delay of 71 days and filed condonation petition, citing medical reasons. I have gone through the condonation petition, medical certificate filed by the assessee and find that there is a reasonable cause for filing the appeal belatedly. Hence, I condone the delay and admit the appeal for hearing.
Murali Krishna Kommineni, Srikakulam
Brief facts of the case are that the assessee, an individual, doing wholesale Kirana business under the name and style of Sri Sai Deekshitha Enterprises filed his return of income for the A.Y.2017-18 on 29.12.2017, admitting an income of Rs.10,94,850/- and agricultural income of Rs.2,00,000/-. Assessing Officer(AO) completed the assessment and passed an order u/s 143(3) dated 30.12.2019, assessing the income at Rs.28,24,850/- by making addition of Rs.17,30,002/- u/s 68 of the Act on account of unexplained gifts received by the assessee.
Aggrieved by the order of the AO, the assessee preferred an appeal before the CIT(A) and the Ld.CIT(A) sustained the addition made by the AO and dismissed the appeal of the assessee ex-parte.
Aggrieved by the order of the Ld.CIT(A), the assessee preferred an appeal before the Tribunal by raising the following grounds of appeal :
1. That under the facts and circumstances of the case the orders passed by the Assessing Officer under section 143(3) of the IT Act dated 30th December 2019 that was upheld by the learned CIT(A) NFAC vide orders passed u/s 250 of the IT Act dated 21.07.2023 is contrary to the provisions of the Act and fact of the case.
The Learned Commissioner of Income Tax (A) ought to have appreciated the fact that the evidences with regards to gifts received from relatives could not be produced and filed before the assessing officer since sufficient opportunity was not given to produce these evidences and in the absence this amounts to violation of principles of natural justice.
Murali Krishna Kommineni, Srikakulam
3. The learned Commissioner of Income Tax(A) failed to take note of the evidences filed before him in line with the provisions of rule 46A of IT rules. To this extent the learned CIT(A) failed to render justice taking due cognizance of the evidences filed before him and deciding the case on merits.
4. The observations of the learned CIT(A), while dismissing the case of the assessee, that assessee has not produced any material to controvert the finding of the assessing officer is factually incorrect and runs counter to the facts on record since these evidences which assessee could not produce before AO were filed before CIT(A). 5. Without prejudice to the contests above the learned CIT(A) ought to have held the impugned disputed addition made by AO under section 68 of the IT Act does not fall and shall not be liable for tax under section 115BBE of the IT Act rather it should be considered under normal provisions of IT Act. 6. The learned Commissioner of Income Tax while passing the order failed to dispose of assessee case on merits and this is in contravention of the provisions of section 250(6) of the Income Tax Act. 7. For these and other reasons that are to be urged at the time of hearing assessee prays that the impugned order under challenge is liable to be set aside in the interest of justice. 6. The only contention of the Ld.AR is that the Ld.CIT(A) is not justified in dismissing the appeal of the assessee ex-parte and sustaining the addition of Rs.14,89,223/- made by the AO u/s 69C of the Act. The Ld.AR submitted that the Ld.CIT(A) ought to have granted sufficient opportunity of hearing before passing the order to establish assessee’s case with documentary evidences. He, therefore, pleaded me to afford
Murali Krishna Kommineni, Srikakulam one more opportunity of being heard to the assessee before the Ld.CIT(A), keeping in view the principles of natural justice.
Per contra, the Ld.DR relied on the order of the Ld.CIT(A) and contended that the assessee was given sufficient opportunities, but the assessee did not avail the same. He, therefore, pleaded to uphold the order of the Ld.CIT(A) and dismiss the appeal of the assessee.
I have heard both the parties and perused the material available on record. It is undisputed fact that the appeal of the assessee was dismissed ex-parte before the Ld.CIT(A) due to non prosecution of the appeal by the assessee with cogent material evidences to controvert the findings of the AO. The contention of the Ld.AR is that the assessee was not given sufficient opportunity before the Ld.CIT(A) to present his appeal with cogent material evidences and to substantiate his case. He, therefore, pleaded me to remit the matter back to the file of the Ld.CIT(A) to afford another of opportunity of being heard before the Ld.CIT(A) or else it would cause irreparable loss to the assessee. In view of the foregoing facts and circumstances of the case and keeping in view the principles of natural justice, I am inclined to remit the matter back to the file of the CIT(A) and direct the Ld.CIT(A) to afford the assessee another
Murali Krishna Kommineni, Srikakulam opportunity of being heard before the Ld.CIT(A). The assessee is also directed to adhere to the notices issued by the Ld.CIT(A) and furnish relevant material evidences to substantiate his case. Accordingly, the grounds filed by the assessee are allowed for statistical purpose.
In the result, appeal of the assessee is allowed for statistical purpose.
Order pronounced in the open court on 10th January, 2024.
Sd/- (दुव्वूरु आर.एल रेड्डी) (DUVVURU RL REDDY) न्याधयक सदस्य/JUDICIAL MEMBER Dated : 10.01.2024 L.Rama, SPS आदेश की प्रतितिति अग्रेतिि/Copy of the order forwarded to:- 1. ननधधाऩरती/ The Assessee– Shri Muralikrishna Kommineni, 17, SBI Colony Chinna Bondilipuram, Srikakulam 2. रधजस्व/The Revenue – The Income Tax Officer, Ward-2, Srikakulam 3. The Principal Commissioner of Income Tax, Visakhapatnam 4. नवभधगीय प्रनतनननध, आयकर अपीलीय अनधकरण, नवशधखधपटणम / DR,ITAT, Visakhapatnam 5..गधर्ा फ़धईल / Guard file आदेशधनुसधर / BY ORDER
Sr. Private Secretary ITAT, Visakhapatnam