M/s. Badam Trading Pvt. Ltd, Surat V. Income Tax Officer, Ward 1(1)(1), Surat

ITA 271/SRT/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 0028 (ITAT-SURAT)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 13-08-2024
• Assessment Year: 2013-2014
• Appeal Filed On: 10-03-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay
• Section: 271(1)(c); 250

Judgement Text

आयकर अपीलीय अिधकरण, सुरत Ɋायपीठ, सुरत IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI BIJAYANANDA PRUSETH, ACCOUNTANT MEMBER आ.अ.सं./ITA Nos.29 & 271/SRT/2024 (AY 2013-14) (Hearing in physical court) M/s Badam Trading Pvt. Ltd., 6/1442, Office No.402/4, Middle Side, Laxmi Sadan, Thobha Sheri, Mahidharpura, Surat-395006 [PAN No: AAECB 0801 H] Vs Income Tax Officer Ward-1(1)(1), Surat, Room No.111, 1 st Floor, Aayakar Bhawan, Majura Gate, Opp. New Civil Hospital, Surat-395001 अपीलाथŎ/Appellant ŮȑथŎ /Respondent िनधाŊįरती की ओर से /Assessee by Shri Sapnesh R Sheth, CA राजˢ की ओर से /Revenue by Shri Vinod Kumar, Sr-DR अपील पंजीकरण/Appeal instituted on 15.01.2024 & 11.03.2024 सुनवाई की तारीख/Date of hearing 14.08.2024 उद्घोषणा की तारीख/Date of pronouncement 14.08.2024 Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. These two appeals by assessee are directed against separate order of National Faceless Appeal Centre, Delhi [for short to as “Ld. NFAC/Ld.CIT(A)”] dated 06.01.2023 and 10.02.2024 for same assessment year i.e., 2013-14. In ITA No.29/SRT/2024, the assessee has challenged the addition in the quantum assessment, wherein in ITA No.271/SRT/2024, the assessee has challenged the validity of penalty levying under section 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) dated 23.09.2016. As certain facts in both appeals are common, thus, both the appeals were clubbed and heard together. Appeal in quantum ITA Nos.29 & 271/SRT/2024 (A.Y 13-14 M/s Badam Trading Pvt. Ltd. 2 assessment in ITA No.29/SRT/2024 is treated as “lead” case The assessee has raised the following ground of appeal:- “1. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income-tax (Appeals) has erred in passing ex- parte order without providing reasonable opportunity of hearing to assessee. 2. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income-tax (Appeals) has erred in confirming the action of Assessing Officer in making disallowance of purchase of Rs.2,38,79,416/-. 3. It is therefore prayed that above addition made by Assessing Office and confirmed by Commissioner of Income-tax (Appeals) may please be deleted. 4. Appellant craves leave to add, alter or delete any ground(s) either before or in course of hearing of the appeal.” 2. Rival submission of Ld. Authorized Representative (Ld.AR) for the assessee and Ld. Sr. Departmental Representative (Ld. Sr-DR) for the Revenue have been heard and record perused. At the outset of hearing, Ld. AR of the assessee submits that impugned order was passed by Ld.CIT(A) on 06.01.2023, said order was not received immediately by assessee either through e-mail or physical copy. The assessee has filed an affidavit of one of the Director of assessee, namely, Shri Satish K. Soni. The Ld. AR of the assessee submits that assessee tried to down-load impugned order from ITBA portal but could not succeed down-load due to technical glitzes on the ITBA portal. The assessee lodged a grievance on 21.11.2023 raising objection that order passed under section 250 of the Act is not available for down-loading and on such grievance, physical copy of the impugned order was provided to assessee on 08.12.2023. The assessee immediately filed appeal before Tribunal, therefore there is no delay from the date of ITA Nos.29 & 271/SRT/2024 (A.Y 13-14 M/s Badam Trading Pvt. Ltd. 3 communication of the order received. There was no intention or deliberate delay on the part of assessee rather the impugned order was not available on ITBA portal. The Ld. AR of the assessee prayed before the Bench to condone the delay for technical reason. On merit of the case, Ld.AR of the assessee submits that assessee filed appeal before Ld.CIT(A) in 2017. As per order of Ld.CIT(A), the appeal was fixed for hearings for on four occasions. However, only two notices of hearing were received for making compliance by giving a very short time, though assessee could not make compliance on such dates. The Ld. AR of the assessee submits that the assessee has not received the notice of various occasions as mentioned by Ld.CIT(A) in his order. The Ld. AR of the assessee filed copy of screen shot of ITBA portal showing that only two notices were issued to the assessee. The Ld.CIT(A) passed ex parte and non-speaking order. The Assessing Officer (AO) also passed assessment order by making huge addition by taking view that despite giving opportunities to assessee has not produced books of account, though the assessee furnished required yet huge additions were made by ignoring the reply of assessee. The Ld.AR submits that in the interest of justice the matter may be restored back to the file of AO instead of Ld.CIT(A) to avoid long drawn process in obtaining remand report on the submission of assessee for the reasons that AO in his order has mentioned that required details were not furnished. The Ld. AR for the assessee undertakes that assessee will be more vigilant in future and will make compliance of all the notices as and when called for by Assessing ITA Nos.29 & 271/SRT/2024 (A.Y 13-14 M/s Badam Trading Pvt. Ltd. 4 Officer. Against the grounds of appeal, in ITA No.29/SRT/2024, the Ld. AR of the assessee submits that grounds of appeal in case the appeal in quantum assessment is restored back to the file of AO, the penalty under section 271(1)(c) imposed by AO, which is under appeal in ITA No.271/SRT/2024, will not survive. 3. On the other hand, Ld. Sr-DR for the Revenue supported the order of lower authorities. The ld. Sr-DR for the Revenue submits that in case the Bench is convinced with the reason of delay explained by assessee, he has no objection in condoning the delay. On merits, the ld Sr DR of revenue submits that although the assessee was given sufficient opportunities by lower authorities buy the assessee failed to avail such opportunity. In alternative and without prejudice the ld DR for revenue submits, in case Bench is of the view that assessee deserves any further opportunity, the matter may be restored back to the file of Assessing Officer with a direction the assessee to be more vigilant in future and making timely compliance and not to make any default. 4. We have considered the submission of both the parties and perused the order of lower authorities carefully. Firstly, we are considering the plea of assessee on the issue of condonation of delay. We find that impugned order was passed by Ld.CIT(A) on 06.10.2023, and in Form-36 (Form of appeal to the Appellate Tribunal) in column-3(c) has mentioned the date of communication on 08.12.2023, thus the registry has not issued any defect memo as the appeal was filed within period of limitation prescribed for ITA Nos.29 & 271/SRT/2024 (A.Y 13-14 M/s Badam Trading Pvt. Ltd. 5 filing appeal before the Tribunal, from the date of communication of the order. Yet the assessee in his all fairness has filed an application for condonation of delay in explaining the circumstance about receipt of the impugned order on 08.12.2023. Before us Ld. AR of the assessee vehemently argued that impugned order passed by Ld. CIT(A) under section 250 of the Act was not available on the ITBA portal that on raising grievance, before the Assessing Officer, the physical copy of impugned order was supplied to the assessee on 08.12.2023. To support his contention, Ld. AR of the assessee has submitted that assessee filed an affidavit one of the Director, Shri Satish K. Soni. Such fact is not controverted by Ld.Sr-DR for the Revenue. Considering the facts and circumstances of the case, the delay in filing, if any, is condoned. Now adverting to merit of the case. 5. We find that Assessing Officer made addition of Rs.2.38 crores on account of difference in exchange rate by holding that assessee has not produced its books of account. The Ld.CIT(A) confirmed the action of Assessing Officer in ex parte and non-speaking order. Considering the facts that both the authorities below have passed the order ex-parte. Further considering the facts that substantial rights of the assessee is involved in the present appeal, the assessee in our view deserve one more opportunity for explain the facts before AO. Hence, all the grounds of appeal raised by the assessee are restored back to the file of AO for passing order afresh on the issue raised in the present appeal. Needless to direct that the Assessing ITA Nos.29 & 271/SRT/2024 (A.Y 13-14 M/s Badam Trading Pvt. Ltd. 6 Officer shall pass order after giving fair and reasonable opportunity to assessee. The assessee is also directed to be more vigilant in future in making compliance in time and not to seek further adjournment without any valid reason and furnish all relevant and necessary evidences if so desire. With these directions the appeal of assessee is allowed for statistical purposes. 6. In the result, ITA No.29/SRT/2024 is allowed for statistical purposes. 7. Considering the facts that we have restored the grounds of appeal in quantum assessment to the file of AO, the penalty under section 271(1)(c) will not survive. However, the AO is given liberty to initiate fresh penalty in accordance with law. In the result, the grounds of appeal in ITA No. 161/SRT/2024 is also allowed for statistical purpose. 8. In the result, both the appeals of the assessee are treated allowed for statistical purposes. Order pronounced in open court on 14/08/2024 Sd/- Sd/- (BIJAYANANDA PRUSETH) (PAWAN SINGH) [लेखा सद˟/ACCOUNTANT MEMBER] [Ɋाियक सद˟ JUDICIAL MEMBER] सूरत /Surat, Dated: 14 /08/2024 Dkp. Out Sourcing Sr.P.S Copy to: 1. Appellant- 2. Respondent- 3. CIT By order 4. DR 5. Guard File Senior Private Secretary/ Assistant Registrar, ITAT, Surat copy/ // True Copy //