M/S. ORACLE CONSTRUCTIONS ,SRINAGAR vs. INCOME TAX OFFICER ( TDS), SRINAGAR

Per Dr. M. L. Meena, AM:

The captioned appeal is filed by the assessee against the order of the

ld. CIT(A) National Faceless Appeal Centre (NFAC), Delhi dated 26.06.2023 in respect of Assessment Year: 2013-14.

2 ITA No. 244/Asr/2023 Oracle Constructions v. ITO 2. At the outset, the ld. counsel for the assessee submitted that the ld.

CIT(A) has rejected the appeal ex-parte qua the assessee by stating that

the he is not interested in pursuing the appeal and hence, the appeal of the

appellant is dismissed for non- prosecution vide para 7.2 of the impugned

order.

before the ld. CIT(A) NFAC, Delhi against the order of ITO (TDS), Srinagar

dated 30.03.2021 wherein in one appeal the financial year was mentioned

as 2013-14 due to some inadvertent error in place of financial year 2012-13

which has been adjudicated by the ld. CIT(A) and the subject matter of the

appeal before the Tribunal. Subsequently, the mistake was rectified by

correcting the financial year as 2012-13 by filing the appeal again in Form

No. 35 13.09.2021 before the ld. CIT(A) NFAC, Delhi against the said order

of the ITO (TDS), Srinagar dated 30.03.2021. A copy of acknowledgement

filed on record (APB Pg. No. 10). The counsel has requested that on filing a

revised Form No. 35 by correcting the financial year, the old appeal memo

get merged with the new appeal memo in Form No. 35. Further, the ld.

CIT(A) has adjudicated the old appeal ex-parte qua the assessee in

violation of principles of natural justice, and therefore, he requested that the

3 ITA No. 244/Asr/2023 Oracle Constructions v. ITO matter may be remanded back to the file of the ld. CIT(A) to adjudicate the

appeal along with the correct appeal memo filed in Form No. 35 by

rectifying the mistake in financial year by as 2012-13. The counsel has

contended that although the appellant has received notices in respect of both the appeals and submissions were also filed on 10th July, 2023 along

with paper book (APB Pg. 47) in respect of appeals filed, however, the last

notice was sent on portal could not be excess by the assessee due to

some inadvertent error. He prayed that the matter may be remanded back

to the ld. CIT(A) to adjudicate the two appeal together by way of merger

being assessment arising out of the same order of the ITO (TDS), Srinagar,

dated 30.03.2021. The counsel undertakes to cooperate in the fresh

proceedings before the ld. CIT(A) NFAC, Delhi by filing requisite

information and reconciliation of the two appeal memos on similar grounds

of appeal filed in respect of the same order of the ITO (TDS), Srinagar as

above.

contending that several opportunities have been granted to the appellant

assessee, however, we failed to rebut the contention of the appellant on

facts of the case that the two appeals were filed by the appellant and that

4 ITA No. 244/Asr/2023 Oracle Constructions v. ITO the duplicate appeal was filed rectifying the mistake in writing financial year

in respect of the same order of the ITO (TDS), Srinagar dated 30.03.2021.

and the impugned order. Admittedly, the appellant has filed two appeals

against the same order of ITO (TDS), Srinagar dated 30.03.2021 on

07.09.2021 and another appeal on 13.09.2021. It is contended by the ld.

AR that the ld. CIT(A) has passed the order ex-parte qua the assessee

against the appeal filed on 07.09.2021 by mentioning a wrong financial

year as 2013-14 in place of 2012-13 due to some inadvertent error by the

technical staff of the counsel of the assessee. In our view, the assessee

deserves to be granted one more opportunity of being heard in view of the

principles of natural justice before the ld. CIT(A) who has rejected the

appeal by passing an order ex-parte qua the assessee. Under the

circumstances, we consider it deem fit to remand back the matter to the file

of the ld. CIT(A) to adjudicate the appeal afresh along with the another

appeal filed on 13.09.2021 wherein the appellant has mentioned the correct

financial year in respect of the same order of the ITO (TDS), Srinagar dated

30.03.2021, after considering the submissions already filed by the appellant

on record and to be filed during the fresh proceedings. No doubt, the

5 ITA No. 244/Asr/2023 Oracle Constructions v. ITO appellant shall cooperate in the fresh proceedings before the ld. CIT(A).

Accordingly, the appeal of the assessee is remanded back to the ld. CIT(A)

for fresh adjudication as per law.

purpose.

Order pronounced in the open court on 13.09.2023

Sd/- Sd/- (Anikesh Banerjee) (Dr. M. L. Meena) Judicial Member Accountant Member *GP/Sr.PS* Copy of the order forwarded to: (1)The Appellant: (2) The Respondent: (3) The CIT(Appeals) (4) The CIT concerned (5) The Sr. DR, I.T.A.T. True Copy By Order