2016 (3) TMI 1189

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....ason that no one appeared at the time of posting of the appeal which was in fact not served properly address mentioned in Form No. 35 (Last Column) Apart from the above fact, the notices served where not properly served even to assessee except one notice Dt. 18/09/2016 posting the case to 21/09/2016 without having sufficient time to approach the counsel. Further, when we approached the department towards status of the petition, they expressed their inability towards the disposal of said petition and immediately, I approached the counsel to file the appeal and accordingly, this appeal is now being filed on even date" Considering the prayer, I hereby condone the delay in filing the appeal and the appeal is admitted. 2. Briefly stated, As....

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....acts, probabilities of the case and against the principles of equity and natural justice. 02. The AO has not appreciated in proper perspective the explanation submitted by the appellant while making the alleged addition, during the course of assessment proceedings that the return was filed mistakenly by tax return preparer in lTR 2 instead of ITR 4 and the claim was made U /s 44AD instead of eligible claim U/s 44AF and income disclosed is much higher than the above mandatory provisions and without bringing any substantive material evidence is totally unjustified and un warranted both in law and facts. 03. The AO erred in law by in one way accepting the nature of activity and gross receipts, also accepting that there were no debits or cr....

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.... provided, neither the assessee nor authorized representative furnished any evidence during appellate proceedings also rebutting the conclusions drawn by the AO. Therefore, I am of the considered opinion that the AO is justified in making the above mentioned addition. As result, the grounds raised by the assessee are dismissed." 4. Assessee raised the following grounds in his appeal: "1. The order of the CIT (A) in so far as dismissing the appeal of the on the ground of non-appearance without serving the notice to the address mentioned as per Form No. 35 duly filed by the appellant is erroneous in law, contrary to facts and against the principles of equity and natural justice. 02. The CIT (A) ought to have consider the fact that the ve....

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....visions of Income Tax Act, 1961. 07. For these and other reasons that may be urged at the time of hearing, the appellant prays the Honorable Tribunal to kindly condone the delay and admit the appeal and dispose of the case on merits. 5. After considering the rival contentions, I am of the view that the order of the CIT(A) cannot be sustained. First of all there is no evidence that Assessee was served with notices by the CIT(A). Assessee's counsel fairly admitted that no notice was received for posting the cases on 18-09-2016 and 29-09-2016, whereas one notice was received on 18-09-2016 posting the case on 29-09- 2016, without sufficient time to approach the counsel. It was also submitted that grounds raised before the CIT(A) were not ad....