What did the Tribunal hold?

The Tribunal condoned the delay in filing the appeals and set aside the CIT(A)'s orders. The matters were remanded back to the CIT(A) for fresh adjudication after granting the assessee a reasonable opportunity to be heard.

The assessee's appeals were dismissed by the CIT(A) for non-compliance and repeated requests for adjournments. The assessee sought to restore the appeals, citing illness and a desire to present evidence.

What were the issues?

Whether the CIT(A) was justified in dismissing the appeals for non-compliance without granting a reasonable opportunity, and whether the assessee should be allowed to present their case with supporting evidence.

Sudarsan Nayak, Berhampur vs ACIT | ITAT Cuttack 2017

Income Tax Appellate Tribunal, CUTTACK ‘SMC’ BENCH,

Before: SHRI N.S SAINI

For Appellant: Shri B.K.Mohapatra, AR

For Respondent: Shri D.K.Pradhan, DR

Pronounced: 11/01

These are appeals filed by the assessee against the separate orders of

CIT(A)-1, Bhubaneswar, all dated 6.5.2016, for the assessment years 2006-

07, 2007-08 & 2009-2010, respectively.

The assessee has taken following common grounds of appeal, which

read as under:

“1. For that the order as passed by the ld CIT (A) is unjust and illegal on facts and circumstances of the case.

2 ITA Nos . 377 ,3 78 & 3 79 /CT K/20 16 Asse ssme nt Y ear s :2 006 -07, 2007- 08 & 200 9-1 0

For that the ld CIT(A) should not have dismissed the appeal without offering reasonable opportunity to the appellant on the facts and circumstances of the case. 3. For that the ld CIT(A) should not have confirmed the action of the AO, rejecting the agriculture income disclosed by the appellant, on the facts and circumstances of the case. 4. For that the ld CIT(A) should not have confirmed the estimate income from pan masala business without citing any comparable case on the facts and circumstances of the case.”

The above appeals are time barred by 41 days. The assessee has filed

condonation petitions supported by affidavit for condoning the delay in filing

the appeals. After going through the condonation petitions, I find that the

assessee had reasonable cause for not filing the appeals within the stipulated

time. Ld D.R. did not have any objection for condoning the delay. I, therefore,

condone the delay of 41 days in filing the appeals before the Tribunal and

admit the appeals for hearing.

At the time of hearing, ld A.R. of the assessee submitted that the ld

CIT(A) has dismissed the appeals of the assessee for non-compliance on the

dates of hearing fixed by him by observing as under:

“As per records, this appeal was posted for hearing for the first time on 3.10.2012. A petition seeking time was filed on 3.10.2012 on the ground that "As the assessee is suffering from viral fever, he is unable to attend the case today". Accordingly, time was allowed and the case was adjourned to 25.10.2012. There was no compliance on 25.10.2012. Once again the case was posted for hearing on 6.2.2013 on which date a similar time petition was filed

3 ITA Nos . 377 ,3 78 & 3 79 /CT K/20 16 Asse ssme nt Y ear s :2 006 -07, 2007- 08 & 200 9-1 0

on 6,2.2013 on the ground that "As the assessee is sick with high Blood pressure and other compliments he is unable to attend the case today". Again the case was posted for hearing on 27.2.2013. Through a petition filed on 25.2.2013, it was requested to adjourn the case to some other date. Accordingly, the case; was adjourned to 8.3.2013. The A/R of the assessee appeared on 8.3.2013 and filed a written submission. Thereafter, the case was posted for hearing-on "27.1.2014. The A/R appeared on 27.1.2014. Once again the case was posted for hearing on 11.8.2014. There was no compliance on 11.8.2014. Again the case was posted for hearing on 24.12.2015 but the A/R appeared on 28.12.2015 since 24.12.2015 was declared as a holiday and filed a petition seeking time. Again the case was adjourned to 28.1.2016. A petition was also filed on 28.1.2016 seeking time. Accordingly, the case was adjourned to 23.2.2016 on which date the A/R filed a petition requesting for more time. Thereafter, the case was posted for hearing on 9.3.2016 and 3.5.2016. There was no compliance on both the occasions. Keeping in view the trend of non-compliance, I do not think that any fruitful purpose would be served by keeping the appeal pending. I am therefore proceeding to dispose of the appeal on merits on the basis of facts and materials available on record.”

He submitted that the assessee has a good case and has all relevant

documents and evidences are in his possession which unfortunately could not

be filed before the Assessing Officer as well as before ld CIT(A) due to non-

appearance in compliance to the notices issued by them. He submitted that

the issue of agriculture income treated by the Assessing Officer as income

from other sources in the years under appeal is covered in favour of the

assessee by the decision of this Bench of the Tribunal in the case of Smt.

Sabitri Nayak, wife of the assessee in ITA Nos.325 to 330/CTK/2012 order

dated 9.11.2012. He, therefore, submitted that in the interest of substantial

4 ITA Nos . 377 ,3 78 & 3 79 /CT K/20 16 Asse ssme nt Y ear s :2 006 -07, 2007- 08 & 200 9-1 0

justice, the matter should be restored back to the file of the ld CIT(A) and

one more opportunity should be granted to the assessee to present his appeals

before the ld CIT(A).

On the other hand, ld D.R. vehemently opposed the submission of ld

A.R. of the assessee.

I have heard the rival submissions and perused the orders of lower

authorities and materials available on record. On a query by the Bench that

on a consistent non-compliance by the assessee before the Assessing Officer

as well as before the ld CIT(A) and wasting valuable time of the Assessing

Officer, ld CIT(A) and also of the Tribunal, what cost should be imposed on

the assessee, ld A.R. of the assessee fairly agreed that the assessee is willing

to pay a cost of Rs.10,000/-. I, therefore, in the above facts and

circumstances of the case, set aside the orders of ld CIT(A) under appeal and

remand the matter back to his file for adjudicating the appeals of the assessee

afresh after allowing reasonable and adequate opportunity of hearing to both

the parties. The assessee is directed to deposit a cost of Rs.10,000/- within

30 days from the date of this order with the Income Tax Department. The

assessee is further directed to suo-moto appear before the ld CIT(A) within

30 days from the date of this order for fixing the hearing of the appeals. The

assessee is also directed to fully comply with the notice of hearing and submit

5 ITA Nos . 377 ,3 78 & 3 79 /CT K/20 16 Asse ssme nt Y ear s :2 006 -07, 2007- 08 & 200 9-1 0

all evidences and documents on which he wishes to rely upon before the ld

CIT(A) as and when called upon to do so. Ld CIT(A) is also directed to dispose

of all these appeals as expeditiously as possible. Ld CIT(A) before taking up

these appeals for hearing should ensure that the assessee has complied with

the order of the Tribunal by depositing a cost of Rs.10,000/-. With these

directions, the appeals of the assessee are restored back to the file of the ld

CIT(A).

In the result, the appeals filed by the assessee are allowed for statistical

purposes.

Order pronounced in the open court on 11/01/2017 in the presence of parties. Sd/- (N.S Saini) ACCOUNTANT MEMBER Cuttack; Dated 11/01 /2017 B.K.Parida, SPS Copy of the Order forwarded to : The Appellant : Sudarsan Nayak, 4th Prem 1. Nagar, Berhampur, Ganjam 2. The Respondent. ACIT, Berhampur Circle, Berhampur 3. The CIT(A-1, Bhubaneswar 4. Pr.CIT, Bhubaneswar. 5. DR, ITAT, Cuttack 6. Guard file. //True Copy// BY ORDER,

ASST.REGISTRAR, ITAT, Cuttack

SUDARSAN NAYAK,BERHAMPUR vs. ACIT, BERHAMPUR CIRCLE, BERHAMPUR

What did the Tribunal hold?

What were the facts?

What were the issues?

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