Voruganti Venkata Ramana Roa,, ... vs Assessee

Vorunganti Venkata Ramana vs. Jt. Commissioner of Income- Rao, Hyderabad tax, Karimnagar Range, Karimnagar PAN - AAOPV8461C (Appellant) (Respondent)

Assessee by : Shri P. Raviseshagiri Rao Revenue by : Smt. G. Aparna Rao

Date of hearing 13-04-2015 Date of pronouncement 17-04-2015

OR D ER

PER SAKTIJIT DEY, J.M.:

This appeal by assessee is directed against the order dated 18/12/2014 passed by ld. CIT(A)-III, Hyderabad dismissing assessee's appeal exparte and in-limine without condoning delay. Appeal pertains to AY 2009-10.

2. Briefly the facts are, assessee an individual is engaged in the business of executing civil contract works. For the AY under consideration, assessee filed his return of income on 30/09/2009 declaring total income of Rs. 68,12,247. In course of assessment proceeding, AO noticed that assessee has debited an amount of Rs. 47,68,910 to P&L A/c towards hire charges, however, assessee has not deducted any tax at source on such payments. As according to AO, provisions of section 194-I applies. Though, 2 ITA No. 503 /Hyd/2014 Voruganti Venkata Ramana Rao

assessee submitted that the provisions of section 194-I are not applicable but AO rejecting the submissions of assessee held that payments made being in the nature of payments referred to in section 194-I are subject to deduction of tax at source. On further verification, AO found that payments exceeding the threshold limit of Rs. 1,20,000 to each hirer amounted to Rs. 27,07,010 during the year. Accordingly, AO applying the provisions of section 40(a)(ia) disallowed the said amount and added back to the income of assessee. Being aggrieved of the assessment order so passed, assessee preferred appeal before ld. CIT(A).

3. As it appears from the facts on record, appeal was filed before ld. CIT(A) with a delay of 135 days. As observed by ld. CIT(A) in the order passed by him, though, assessee was given opportunity to explain the delay, since neither any one appeared on behalf of assessee nor explained the cause of delay on the date fixed for hearing, appeal was dismissed on the ground of delay without being admitted. Being aggrieved of the said order of ld. CIT(A), assessee is before us.

4. Though assessee has raised a number of grounds, but, at the time of hearing before us, ld. AR submitted as ld. CIT(A) has dismissed the appeal exparte without affording a reasonable opportunity of being heard to assessee, the matter may be remitted to ld. CIT(A) for enabling assessee to explain the delay as well as represent his case on merit.

5. Ld. DR has no serious objection if the matter is remitted back to the file of ld. CIT(A) for considering afresh.

6. We have heard the parties and perused the materials on record as well as the orders of revenue authorities. There is no dispute to the fact that appeal has been decided exparte by ld. CIT(A). However, as can be seen, ld. CIT(A) has given the first date of hearing on 13/02/2014. As it appears, for whatever may be the reason, no one represented assessee on the said date of hearing. Therefore, ld. CIT(A) proceeded to dismiss appeal exparte on the ground of delay on the very same date without giving any further opportunity to assessee. In our view, ld. CIT(A) was not justified in dismissing appeal exparte on the very first date of hearing. Ld. CIT(A) 3 ITA No. 503 /Hyd/2014 Voruganti Venkata Ramana Rao

should have given at least one more opportunity to assessee to represent his case before him. Therefore, in the interest of justice, we are inclined to set aside the impugned order of ld. CIT(A) and remit the matter back to his file for consideration afresh. However, it needs to be mentioned, appeal before ld. CIT(A) was filed by assessee with a delay of 135 days. It is also a fact on record that assessee has not explained cause for delay before ld. CIT(A), instead, assessee has filed a petition before this forum seeking condonation of delay being supported by an affidavit. Section 249(3) of the Act empowers the first appellate authority to admit an appeal after expiry of the period of limitation if he is satisfied with the cause for delay. Since, the delay in filing of appeal is before ld. CIT(A), assessee has to satisfy the authority concerned by explaining the cause for delay before him. The Tribunal cannot usurp the power of the first appellate authority and condone the delay. For the aforestated reasons, we direct assessee to explain the cause for delay before ld. CIT(A) by filing an application for condonation of delay. W e expect, Ld. CIT(A) will consider the explanation of assessee for delay judiciously and sympathetically without being too technical, and if he is satisfied with the cause shown, he may decide the appeal on merit after condoning the delay. Needless to say, ld. CIT(A) must afford due opportunity of being heard to assessee. Since the matter has been remitted to the file of ld. CIT(A), we decline to decide the issue relating to the addition made by AO on merit.

7. In the result, appeal of assessee is allowed for statistical purposes.

Pronounced in the open court on 17 th April, 2015.

Sd/- Sd/- (B. RAMAKOTAIAH) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER

Hyderabad, Dated: 17 th April, 2015 kv 4 ITA No. 503 /Hyd/2014 Voruganti Venkata Ramana Rao

Copy to:-

1) Shri Voruganti Venkata Ramana Rao, C/o Sri S. Rama Rao, Advocate, Flat No. 102, H. No. 3-6-643, Shriya's Elegance, St. No. 9, Himayatnagar, Hyderabad - 500 029

2) JCIT, Karimnagar Range, Karimnagar

3) CIT(A)-III, Hyderabad

4) CIT-II,, Hyderabad

5) The Departmental Representative, I.T.A.T., Hyderabad.