AASIFE BIRIYANI PVT. LTD.,CHENNAI V. .ITO, CORPORATE CIRCLE-1(1), CHENNAI

ITA 2460/CHNY/2024

AI Insights

The case involves Aasife Biriyani Private Limited appealing against the order of the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, which had dismissed their appeal on the grounds of delay and non-prosecution without considering the merits. The Tribunal referenced a precedent where similar circumstances warranted a lower appeal fee and admitted the appeal for adjudication. The Tribunal also noted the Supreme Court's guidance on condoning delays in legal proceedings, emphasizing a liberal and justice-oriented approach.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 29314 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2024
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2018-2019
• Appeal Filed On: 19-09-2024
• Other Referred Cases: Anil Kumar Ohja vs. DCIT, Rajakamal Polymers (P) Ltd. v. CIT, Dr. Ajith Kumar Pandey v. ITAT, Collector, Land Acquisition, Anantnag v. Katiji, Indian Oil Corporation Ltd. And Ors vs. Subrata Borah Chowlek and Ors
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T.M. SUGANTHAMALA; IRS
• Assessee Lawyers: S.P.CHIDAMBARAM
• Keywords: Condonation of delay; Set aside
• Section: 144

Judgement Text

" आयकर अपीलीय अिधकरण ‘बी’’ Ɋायपीठ चेɄई मŐ। IN THE INCOME TAX APPELLATE TRIBUNAL ‘B’ BENCH, CHENNAI माननीय ŵी मनोज क ुमार अŤवाल ,लेखा सद˟ एवं माननीय ŵी मनु क ुमार िगįर, Ɋाियक सद˟ क े समƗ। BEFORE HON’BLE SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER AND HON’BLE SHRI MANU KUMAR GIRI, JUDICIAL MEMBER आयकरअपील सं./ ITA No.2460/Chny/2024 (िनधाŊरणवषŊ / Assessment Year: 2018-2019) Aasife Biriyani Private Limited, GLRS, No.325, Door No.11/3Q, Railway Station Road, Azharkhana, Alandur, Chennai 600 016. [PAN: AAMCA 9955H] Vs. The Income Tax Officer, Corporate Circle 1(1) Chennai. (अपीलाथȸ/Appellant) (Ĥ×यथȸ/Respondent) अपीलाथȸ कȧ ओर से/ Appellant by : Shri S.P. Chidambaram and Ms. Sonali Kothari.S. Advocates Ĥ×यथȸ कȧ ओर से /Respondent by : Ms.T.M. Suganthamala, IRS, Addl. CIT सुनवाई कȧ तारȣख/Date of Hearing : 10.12.2024 घोषणा कȧ तारȣख /Date of Pronouncement : 10.12.2024 आदेश / O R D E R PER MANU KUMAR GIRI (Judicial Member) This appeal by the assessee is arising out of the order of the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi in order No.ITBA/NFAC/S/250/2024-25/1066342333 (1) dated 02.07.2024. The assessment was framed by the Income Tax Officer, Corporate Circle 1(1), Chennai for the assessment year 2018-19 u/s.147 rws 144 rws 144B of the Income Tax Act, 1961 (hereinafter the ‘Act’), vide order dated 27.03.2023. 2 ITA No. 2460 /Chny/2024 2. At the time of hearing, the ld. Authorized Representative submitted that the Registry has issued defect notice on the ground that assessee had paid appeal fees of Rs.500/- only instead of Rs.10,000/-. The Ld. counsel for the assessee submitted that the appeal was dismissed in limine by the CIT(Appeals) only on the ground of delay in filing appeal and not on merits. Therefore, as per the ld. AR the fees as per clause (d) of Section 253(6) of the Act was only Rs.500/-. He placed reliance on the decision of Co-ordinate Bench in the case of Anil Kumar Ohja vs. DCIT, in ITA No.189/Mds/2012, dated 28.03.2012 for assessment year 2005-2006 and pleaded to admit the appeal of the assessee. 3. We find that the issue deficit appeal fees is squarely covered in favour of the assessee by the decision of the Co-ordinate Bench of the Tribunal in the case of Anil Kumar Ohja (supra) which held as under:- ‘’2. We find that there is a letter filed by the assessee whereby he objected to a notice from the Registry regarding short payment of fees. Ld. counsel for the assessee submitted that the appeal was dismissed by the CIT(Appeals) only on the ground of non-appearance and not on merits. Therefore, as per the assessee, the fees as per clause (d) of Section 253(6) of Income-tax Act, 1961 (in short 'the Act') was only 500/-. In support, learned counsel has filed a decision of Hon'ble Karnataka High Court in the case of Rajakamal Polymers (P) Ltd. v. CIT (291 ITR 314) and also a decision of Hon'ble Patna High Court in the case of Dr. Ajith Kumar Pandey v. ITAT (310 ITR 195). 3. We find that CIT(Appeals) had dismissed the assessee's appeal for non- prosecution and had not considered the issue on merits. In our opinion, in such a situation, the fees paid has to be as per clause (d) of Section 253(6) of the Act. The assessee has rightly paid the sum of 500/- as stipulated in the said clause of the Act. In the case of Rajakamal Polymers (P) Ltd. (supra), Hon'ble Karnataka High Court had held that when an appeal was rejected by the CIT(Appeals) on the ground of limitation, the fee payable for further appeal before this Tribunal, was only 500/- under clause (d) of Section 253(6) of the Act. In our opinion, there is not much difference between an order of CIT(Appeals) which is not on merits, but dismissing an appeal whether on account of limitation or on account of non-appearance of the parties. In this view of the matter, we admit the appeal of the assessee’’. 3 ITA No. 2460 /Chny/2024 4. Respectfully following the co-ordinate bench decision, we admit the appeal of the assessee for adjudication and overruled the objection of the Registry. We also perused the affidavit of director of Company and the reasons, we condone the delay of 19 days in filing the appeal and admit the appeal for adjudication. 5. We have also deliberated upon the reasons given in form 35 for delay in filing appeal before the ld.CIT(A). The reason for delay in filing the appeal is given as under: “The Accountant and Auditor with whom the relevant documents were entrusted with was out of station for their personal and professional work.” 6. The Hon’ble Supreme Court in Collector, Land Acquisition, Anantnag v. Katiji, [A.I.R. 1987 (S.C.) 1353] has emphatically held that Courts should take a liberal, justice-oriented, justifiable and reasonable approach in condoning the delay. The Courts have been reminded that a party who, as per the present adversial legal system, has selected his advocate, briefed him and paid his fees can remain supremely confident that his lawyer will look after his interest and such an innocent party who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanor of his counsel. Again, the Hon’ble Supreme Court in Indian Oil Corporation Ltd. And Ors vs. Subrata Borah Chowlek and Ors. (supra) has succinctly held thus: 7. Having heard the learned counsel, we are of the opinion that in the instant case a sufficient cause had been made out for condonation of delay in filing the appeal and therefore, the High Court erred in declining to condone the same. It is true that even upon showing a sufficient cause, a party is not entitled to the condonation of delay as a matter of right, yet it is trite that in construing sufficient cause, the Courts generally follow a liberal approach particularly when no negligence, inaction or mala fides can be imputed to the party. 4 ITA No. 2460 /Chny/2024 7. Further, Ld. Counsel prayed that if an adequate opportunity of hearing is given to appellant, appellant would prosecute its case properly before the Ld. AO. The Ld.DR pleaded for dismissal of the appeal on the ground that the assessee failed to appear before the AO as well as the First Appellate Authority. 8. We have gone through the orders of lower authorities and submissions addressed by both parties before us. Taking guidance from the Hon’ble Supreme Court judgment referred supra, we find that the reasons given by the assessee a ‘sufficient cause’ hence condone the delay in filing appeal before the ld.CIT(A). We also find that assessee has not entered appearance before the ld. Assessing Officer as well as the ld. CIT(A) despite notices issued, hence in the interest of justice assessee should be given one more opportunity before the Assessing Officer to prosecute his case. Therefore, in the light of aforesaid factual position we deem it fit to set aside this appeal to the file of Assessing Officer for denovo assessment. The Assessing Officer who shall proceed for denovo assessment after providing proper opportunity of hearing to the assessee subject to cost of Rs.5000/- which shall be deposited by the assessee within 30 days from the date of receipt of this order to ‘Tamil Nadu State Legal Services Authority’ at Hon’ble High Court of Madras. The proof of the same will be furnished by the Assessee before Ld.AO. The assessee is directed to substantiate its case forthwith without any fail, failing which Ld.AO shall be at liberty to proceed with the denovo assessment on merits. The appeal filed by the assessee is allowed for statistical purpose 9. In the result, appeal filed by the assessee is allowed for statistical purpose. 5 ITA No. 2460 /Chny/2024 Order pronounced in the open court at the time of hearing on 10th day of December, 2024 Sd/- Sd/- (मनोज क ुमार अŤवाल) (मनु क ुमार िगįर) (MANOJ KUMAR AGGARWAL) लेखा सद˟ / ACCOUNTANT MEMBER (MANU KUMAR GIRI) Ɋाियक सदस्य / JUDICIAL MEMBER चेɄई Chennai: िदनांक Dated :10-12-2024 KV आदेश कȧ ĤǓतͧलͪप अĒेͪषत /Copy to : 1. अपीलाथŎ/Appellant 2. ŮȑथŎ/Respondent 3. आयकरआयुƅ/CIT, Chennai/Coimbatore/Madurai/Salem. 4. िवभागीयŮितिनिध/DR 5. गाडŊफाईल/GF "