ITO 17(2)(2), MUMBAI vs. PRADIPBHAI NATHALAL SHAH, MUMBAI

During hearing of this appeal, the ld. DR, Shri M. Dayasagar, advanced arguments which is identical to the ground raised by submitting that working of the peak was not provided to the Assessing Officer that to without providing opportunity, therefore, there is violation of Rule- 46A. It was also contended that no remand report was sought from the Assessing Officer. On the other hand, Shri Subramnian, ld. counsel for the assessee, defended the conclusion arrived at in the impugned order.

2.1. We have considered the rival submissions and perused the material available on record. The facts, in brief, are that the assessee declared income of Rs.7,66,880/- in his return filed on 31/03/2010. Notice u/s 143(2) of the Income Tax Act, 1961 (hereinafter the Act) was served upon the assessee. Further, notice u/s 142(1) was issued on 13/01/2011 and the compliance date was fixed for 28/01/2011. Again, notice u/s 142(1) was issued on 15/02/2011 for 21/02/2011. Again, identical notice dated 20/05/2011 was issued for 19/07/2011. Likewise, notice dated 26/08/2011 was issued for 12/09/2011. There was no response to these notices by the assessee. The ld. Assessing Officer again issued notice on 29/09/2011 for 05/10/2011 and notice u/s 271(1)(b) dated 05/10/2011 was 3 Shri Pradipbhai Nathalal Shah 14/10/2011. Finally, show cause notice dated 31/10/2011 was issued for 04/11/2011. The assessee did not responded to the notices/show cause notice, thus, penalty of Rs.50,000/- was imposed u/s 271(1)(b) of the Act. Since, the assessee was getting time barred by 31/12/2011, summoned u/s 131 of the Act dated 20/12/2011 were issued for 22/12/2011. The assessee again did not comply with. The assessee attended on 27/12/2011 and filed written submissions, however, the assessee did not produce proper details of the case. The ld. Assessing Officer completed the assessment u/s 144 of the Act on the basis of material available on record. In view of these facts and since the additional evidence, filed before the ld. Commissioner of Income Tax (Appeals), no remand report was sought from the Assessing Officer and working of peak was not provided before the Assessing Officer, in all fairness, we remand this appeal to the file of the ld. Assessing Officer to examine the claim of the assessee and decide afresh in accordance with law. Needless to mention here that due opportunity of being heard be provided to the assessee. The assessee is also at liberty to furnish evidence, if any, in support of his claim. Further keeping in view, the past track record of the assessee in not responding to the notices/show cause notice, the assessee is directed to appear before the Assessing Officer within one month from the date of receipt of this order. If the assessee fails to appear within the stipulated period, he may free to dispose off the appeal on the basis of material available on record. Further, the Assessing Officer is at 4 Shri Pradipbhai Nathalal Shah liberty to decide the appeal on a mutually decided date. Thus, the appeal of the Revenue is allowed for statistical purposes only.