RAKESH VERMA,KOLKATA vs. I.T.O., WARD-38(3), KOLKATA, KOLKATA

The only issue in this appeal to be decided is as to whether the CIT-A justified in dismissing the petition for condonation of delay in filing first appeal.

The brief facts of the case are that the Assessee is an individual. The Assessee had filed his return of income for the A.Y. 2009-10 on 03.06.2009 declaring a total income at Rs. 1,54,362/-. The AO could not serve notice u/s. 143(2) of the Act upon the assessee either by sending departmental staff members or by registered post. Thereafter the notice was served by affixation on 30-09-2010 on the premises of the assessee and the procedure for affixation of notice was complied and the assessment was completed exparte u/s 144 of the Act determining the total income at Rs.27,58,311/-.

As aggrieved by the order of AO, the assessee preferred an appeal before the CIT-A with delay of 82 days, while considering the petition for delay condonation, the CIT-A found the reasons as submitted by the assessee not satisfactory and dismissed the appeal in limine, the observations of which reproduced as under:

In this appeal, the Ld. AR submits that the CIT-A did not afford an opportunity to the assessee to defend exparte assessment made by the AO U/Sec 144 of the Act and did not appreciate the reasons stated in the submissions made before the CIT-A that the assessee was out of Calcutta due to financial crises and went to his native place in Rajasthan and all the notices were served by affixation and assessee did not receive the notices and not accepting the same as genuine is against to established law and prayed to remit the case to CIT-A for fresh consideration of appeal. The Ld. DR relied on order of CIT-A.

Heard rival submissions and perused the material available on record. We find that from the assessment order the notice u/sec 143(2) could not be served, but, however served by affixation resulting the completion of assessment in the absence of assessee. The finding of the CIT-was that the assessee did not file any petition to condone the delay in filing the appeal and the assessee mentioned wrong dates of service of demand notice and assessment order in form no-35 and also found that the demand notice and assessment order were served by affixation. The case of the assessee was that he was out of Calcutta due to financial crises and stayed in his native place in State of Rajasthan. But, however, in the interest of the justice, we remand the appeal to the file of CIT-A for fresh adjudication treating the reasons as stated in the written submission filed in support of condonation of delay as reasonable by affording an opportunity to assessee and we also direct the assessee to produce any evidence, if any, necessary for the fair adjudication of the case and we also make it clear that the assessee shall not seek any further adjournments.

In the result, the appeal of the assessee is treated as allowed