Seelam Mallesha, R.R.Dist, R.R.Dist vs Assessee

This appeal filed by the assessee is directed against the Order of the Ld. CIT(A)-II, Hyderabad dated 16th December, 2014.

2. The assessee in the present case is an individual. On the basis of information received by him, the A.O. issued a notice under section 142(1) calling for the assessee to file the return of income for the year under consideration. There was however no response from the assessee to the said notice as well as the final show cause notice subsequently issued by the A.O. The A.O. therefore completed the assessment under section 144 by an order dated 28.12.2007. On appeal, the Ld. CIT(A) quashed the said assessment on the ground that notice under section 142(1) was not validly served within the stipulated time. Thereafter, a notice under section 148 was issued by the A.O. on 12.11.2008 for the year under consideration which again remained un-complied with by the 2 ITA.No.215/Hyd/2015 Mr. Seelam Mallesha, Hyderabad.

assessee. The A.O. therefore issued notices under section 143(2) as well as 142(1) on 20.09.2009. The assessee again did not respond to the said notices, but appeared through an Authorised Representative when another notice was issued by the A.O. on 13.11.2009 fixing the date of hearing on 25.11.2009. During course of the hearing, it was claimed by the assessee that even though the relevant sale deed executed by Mr. Seelam Mallesha in his name there were other two persons with whom he was required to share the sale proceeds. This claim of the assessee was not found acceptable by the A.O. in the absence of any documentary evidence to support and substantiate the same. Accordingly, he proceeded to complete the assessment vide an order dated 21.12.2009 wherein after allowing deduction of Rs.2,05,450 on account of indirect cost of acquisition and Rs.3,19,150 under section 54F from the total sale proceeds of Rs.9,07,500, the total income of the assessee was determined by him at Rs.3,82,900.

3. Against the order of the A.O. dated 21.12.2009, an appeal was preferred by the assessee before the Ld. CIT(A). The said appeal was fixed for hearing by the Ld. CIT(A) on 14.11.2014, 08.12.2014 and 16.12.2014. The assessee however sought adjournments on all three occasions which entailed the Ld. CIT(A) to presume that the assessee was not seriously interested to prosecute his appeal. Accordingly, relying inter alia on the decision of the Tribunal in the case of CIT vs. Multiplan India P. Ltd., 38 ITD 320 (Del.), he dismissed the appeal of the assessee in limini for non-prosecution without going into the merit of the issue involved therein. Aggrieved by the order of the Ld. CIT(A), the assessee has preferred this appeal before the Tribunal.

3 ITA.No.215/Hyd/2015 Mr. Seelam Mallesha, Hyderabad.

4. At the time of hearing before us, none has appeared on behalf of the assessee although an application seeking adjournment has filed. This appeal of the assessee is therefore, being disposed of exparte after hearing the arguments of learned D.R. and perusing the relevant material on record. It is observed that although the appeal filed by the assessee before him was posted for hearing by the Ld. CIT(A) on three occasions, the assessee sought adjournments on all these three occasions by filing applications in writing and giving reasons for seeking the adjournments. In these circumstances, we are of the view that the assessee cannot be said to have no intention to prosecute the appeal filed by him before the Ld. CIT(A) and the presumption drawn by the Ld. CIT(A) to this effect is not tenable. Moreover, the Ld. CIT(A) has also not decided the issue raised by the assessee in his appeal on merit vide his impugned order. We therefore, set aside the impugned order passed by the Ld. CIT(A) exparte and remit the matter back to him for deciding the appeal of the assessee on merit after giving one more opportunity of being heard to the assessee.

5. In the result, appeal of the assessee is treated as allowed for statistical purposes.

Order pronounced in the open Court on 05.06.2015.

Sd/- Sd/- (SAKTIJIT DEY) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER

Hyderabad, Dated 05th June, 2015.

VBP/- 4

ITA.No.215/Hyd/2015 Mr. Seelam Mallesha, Hyderabad.

Copy to

1. Mr. Seelam Mallesha, 8-1-168, Mailardevpally, Rajendra Nagar, Hyderabad, Ranga Reddy District.

2. The Income Tax Officer, Ward 8(2), I.T. Towers, A.C. Guards, Hyderabad.

3. Commissioner of Income Tax (Appeals)-II, Hyderabad.

4. Commissioner of Income Tax-II, Hyderabad.

5. D.R. I.T.A.T. "A" Bench, Hyderabad.

6. Guard File