Tirupati Inks Ltd., New Delhi V. DCIT, Circle- 25(1), New Delhi

ITA 3448/DEL/2018

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 0518 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 08-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Period of limitation
• Section: 68; 40A(3); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘B’, NEW DELHI BEFORE SH. R.K. PANDA, ACCOUNTANT MEMBER AND SH. N. K. CHOUDHRY, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCING) ITA No.3448/Del/2018 Assessment Year: 2013-14 Tirupati Inks Ltd. 1517, Devika Tower, 6, Nehru Place, New Delhi PAN No. AAACS2222F Vs DCIT Circle- 25 (1) New Delhi (APPELLANT) (RESPONDENT) Appellant by None Respondent by ShriHarpal Singh Kharb, Sr. DR Date of hearing: 06/01/2022 Date of Pronouncement: 06/01/2022 ORDER PER N. K. CHOUDHRY, JM: This appeal is filed by the Assessee against the order dated 02.02.2018 impugned herein passed by the ld. Commissioner of Income Tax (Appeals)(hereinafter referred to as „ld. Commissioner‟), in appeal No.92/2016-17, New Delhi under Section 250(6) of the Income Tax Act, 1961 (in short „the Act‟) for assessment year 2013-14. 2. None appeared on behalf of the Assessee at the time of hearing. Even no application seeking adjournment of the case has been filed. 2 Though three notices for the date of hearing on 18/08/2021, 2/11/2021 and 06/01/2022 were sent though RPAD to the Assessee, however the same retuned back with the remarks of the postal department “refused”, therefore, we are constrained to decide the appeal on the basis of material available on record after hearing the Ld. DR. 4. The Assessee is a company, had E-filed its returns of income declaring income of Rs.1,60,92,450/- for the A.Y. 2013-14 on 28.09.2013. The case of the Assessee was selected for scrutiny under CASS. Accordingly, statutory notice u/s. 143 (2) of the I.T. Act, 1961 was issued on 10.09.2014. The Assessee through his Authorized Representative attended the proceedings and also produced necessary details. 5. After considering the facts and circumstances of the case and the details filed by the Assessee the income of the Assessee was re-computed by the AO as under:- 6. Thus, the Ld. AO has passed the Assessment Order u/s. 143 (3) of the IT Act, 1961 by assessing the income at Rs.8,73,72,576/- and interest u/s. 234A, 234B, 234C and 234D and also initiated penalty proceedings u/s. 271 (1) (c) of the IT Act. Income as per computation of income 1,60,92.450 Add:- 1. Addition of unsecured loan u/s 68 7,00,00,000 2. Disallowance of Late Deposit of PF & ESI u/s 36(1 )(va) 3,39,935 3. Disallowance u/s 40A(3) 8,04,497 4. Disallowance of Business Promotion Expenses 1,35,694 Total Income under normal provisions 8,73,72,576! Particulars Amount in Rs. 3 7. Aggrieved by the Assessment order dated 29.03.2016 passed u/s. 143(3) of the Act by the Assessing Officer, the Assessee had preferred an appeal No.92/2016-17before the CIT(A)-9, New Delhi. It is observed that though the Ld. Commissioner issued three notices through speed post and one notice by E-mail on 29.09.2017 to the Assessee, however the Assessee neither appeared before Ld. Commissioner nor filed any application for adjournment, therefore, the Ld. Commissioner proceeded to pass the order as ex-parte and dismissed the Assessee‟s appeal being barred by limitation due to delay and not filling application for condonation of delay by the Assessee. Aggrieved by that said order the Assessee has filed the present appeal. 8. We have heard the Ld. DR, who has justified the findings and the conclusion of the AO and the CIT (A) and sought for dismissal of the present Appeal. 8.1 We observe that the Assessee by one of the grounds raised before us contended that the Assessee has „requested for condonation of delay in e-filing‟ before the CIT (A). On the contrary the Ld. Commissioner in the order impugned has observed that “the appeal has neither been prescribed nor any condonation petition has been filed to admit the appeal” and accordingly dismissed the Appeal in limine.Therefore prime issue arise for consideration as to whether the CIT (A) was right in dismissing the Appeal on delay and laches. 4 8.2 As per Section 249(2)(b) of the Act, the limitation period prescribed for Appeal is 30 days from the date of service of the notice of demand relating to assessment or penalty. The Appeal filed beyond the period of limitation can be admitted by condoning the delay only if the Commissioner (Appeal) is satisfied that the Appellant had sufficient cause for not presenting the Appeal within the period of limitation. 8.3 In this case, the Assessment Order was passed by AO on 29-03-2016 and the same along with the Demand Notice was served upon the Assessee on 06.04.2016 and therefore as per section 249 (2) (b) of the Act, the Assessee was supposed to file first appeal before the ld. Commissioner upto 05-05-2016, however the same was filed by the Assessee on 08.10.2016, which is after lapse of 184 days. 8.4 As per the observation of the Ld. Commissioner, the appeal was neither prescribed nor any condonation petition has been filed to admit the appeal, however from column 14 and 15 of the Form 35 it clearly reflects that the Assessee specifically written „yes‟ in column no 14 which read as „whether there is any delay in filling of the appeal‟. In Column no. 15 the Assessee specifically mentioned the reasons of delay. 8.5 No doubt the assesse has failed to appear before the Ld. Commissioner to satisfy him qua cause of delay of 184 days in filling of appeal, however by mentioning reasons in column 15 of FORM 35, pleaded for condonation of delay, which the Ld. Commissioner may be overlooked inadvertently and held contrary, thus for the ends of justiceand just decision of the case, we consider it appropriate to remand this case to the file of Ld. Commissioner for decision afresh, 5 suffice to say while affording proper opportunity of being heard to the Assessee. 9. In the result, the appeal filed by the Assessee stands allowed for statistical purposes. Order pronounced in the open court on 06.01.2022. -Sd/- -Sd/- (R.K. PANDA) (N.K. CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER *NEHA* Date:06.01.2022 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI