Starline Organics Pvt. Ltd, Ahmedabad V. The Income Tax Officer, Ward- 4(1)(2) Now Ward-4(1)(1), Ahmedabad

ITA 366/AHD/2023

AI Insights

Starline Organics Pvt. Ltd. appealed against the order of the ld. CIT(A) which had dismissed their appeal due to an alleged delay in filing. The Tribunal found that the assessee had indeed filed the appeal within the extended deadline provided by the CBDT Circular No. 20/2016, which allowed e-appeals to be filed up to 15-06-2016. The Tribunal noted that the assessee filed their appeal electronically on 09-06-2016, thus within the permissible period, and physically on 05-04-2016, both of which were before the extended deadline. The Tribunal criticized the CIT(A) for not considering the CBDT Circular and dismissed the appeal on the grounds of delay, which was not applicable in this case.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 131576 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Next Hearing Date: 30-08-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 10-05-2023
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 271(1)(c); 154; 274

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “SMC” BENCH Before: Ms. Suchitra Kamble, Judicial Member Starline Org anics Pvt. Ltd ., A-22, Parisee ma Co mplex , C. G. Road, Navrangp ura, Ah medabad -3 80009 PAN: AAKCS178 9H (Appellant) Vs The Income Tax Officer, Ward-4(1)(2), Ah med abad, No w Ward-4(1)(1) Ah med abad (Resp ondent) Asses see b y : Shri M. K. Patel, Adv ocate Revenue by : M s. S aumy a Pa ndey Ja in, Sr. D. R. Date of hearing : 31-08 -2 023 Date of pronouncement : 06-09 -2 023 आदेश/ORDER This is an appeal filed against the order dated 17-03-2023 passed by ld. CIT(A) for assessment year 2011-12. 2. The grounds of appeal are as under:- ITA No. 366/Ahd/2023 Assessment Year 2011-12 I.T.A No. 366/Ahd/2023 A.Y. 2011-12 Page No. Starline Organics Pvt. Ltd. vs. ITO 2 “1. On the facts and in the circumstances of the case and in law the Hon. CIT(A). NFAC erred in holding that the delay of 57 days in filing the appeal cannot be condoned. The appellant prays that there was no delay in filing the appeal. Your appellant has filed form No. 35 physically on 5-4-2016 before Hon. CIT(A) 8, Ahmedabad. The AO's order dated 8-3-2016 u/s. 271(1)(c) of the Act was received on 14-3- 2016 and the appeal was filed physically on 5-4-2016. Thus the appeal was filed manually in time within 30 days of receipt of the penalty order. The appeal fees was paid rs. 250/- on 5-4-2016 vide chalan No.280 BSR Code 05 10075 and chalan serial No. 11281 HDFC Bank -4440 which was accepted by the Hon. CIT(Appeals)8, Ahmedabad and Your appellant had again filed electronically form No.35 on 09-06-2016 vide e receipt No. 193258841090616 along with the statement of facts and grounds of appeal. As per CBDT Circular dated 26-5-2016 F.No.279/Misc./M-54/2016/ITJ, there was extension of time limit up to 15-6-2016 for e filing appeals and all e appeal filed before 15-6-2016 would be treated as appeals filed within time. 2. The Hon. CIT(A) has erred in law and facts in not considering the replies filed by the appellant and erred in not deleting the penalty of Rs. 45840/- on Preliminary exps. of Rs. 138000/- which is related to ROC Filing fees for increase of authorized capital from 25 lacs to 1 Crore. 3. The Hon. CIT(A) further erred in passing the appellate order though Your appellant has filed quantum appeal for the above asst. year on 3-3-2014 and an application u/s. 154 of the Act which are still pending. 4. The appellant craves liberty to add, alter, amend any of the grounds of appeal.” 3. The return of income was filed by the assessee on 23-09-2011 declaring total income of Rs. 15,75,283/-. The assessee company is engaged in the business of trading of chemicals. The assessment was completed on 28-01-2014 determining total income at Rs. 49,33,970/-, thereby I.T.A No. 366/Ahd/2023 A.Y. 2011-12 Page No. Starline Organics Pvt. Ltd. vs. ITO 3 disallowing the claim of bogus commission expenses of Rs. 31,40,689/-, interest expenses of Rs. 80,000/- and preliminary expenses of Rs. 1,38,000/-. 4. Penalty proceedings were initiated by issuing notice u/s. 274 r.w.s. 271(1)(c) of the Act dated 28-1-2014 and served upon the assessee. The assessee filed its reply dated 23-02-2016. After considering the reply, the Assessing Officer levied penalty of Rs. 45,840/- u/s. 271(1)(c) of the Act. 5. Being aggrieved by the penalty order, the assessee filed appeal before the ld. CIT(A). The ld. CIT(A) dismissed the appeal of the assessee. 6. The ld. Authorized Representative submitted that the CIT(A) has dismissed the appeal thereby holding that non-compliance of the provisions of section 249(3) of the Income Tax Act, 1961 and there is delay of 57 days in filing the appeal before the ld. CIT(A). The ld. Authorized Representative submitted that as per Circular No. 20/2016 dated 26 th May, 2016 issued by the CBDT, the e-appeals which were issued to be filed dated 15-05-2016 can be filed upto 15-06-2026 and thus extended the period. The assessee has filed appeal on 09-06-2016 and therefore there was delay in filing the appeal before ld. CIT(A). The ld. Authorized Representative prayed that the delay was not condoned by the ld. CIT(A) despite the said circular and the appeal was not decided on merits. Therefore, the matter may be remanded back to the file of ld. CIT(A) by taking cognizance of the additional evidences and the ld. CIT(A) be directed to decide the matter on merit. I.T.A No. 366/Ahd/2023 A.Y. 2011-12 Page No. Starline Organics Pvt. Ltd. vs. ITO 4 7. The ld. Departmental Representative relied upon the assessment order, penalty order and the order of ld. CIT(A). 8. Heard both the parties and perused the relevant material available on record. It is pertinent to note that the assessee has physically filed the appeal before the ld. CIT(A) on 05-04-2016 and the e-file of assessee’s appeal was on 09-06-2016 which was prior to the extended period of 15-06-2016 as per Circular No. 20/2016 issued by CBDT, therefore, the ld. CIT(A) was not right in taking into consideration the CBDT Circular and dismissing the appeal on the ground of delay when there was no delay on part of assessee. Therefore, the matter is remanded back to the file of ld. CIT(A) for proper adjudication of grounds contested therein after taking cognizance of the evidences/additional evidences filed by the assessee before the ld. CIT(A) and decide the appeal on merit as per law. Needless to say, the assessee be given opportunity of hearing by following the principles of natural law. 9. In the result, the appeal of the assessee is partly allowed for statistical purposes. Order pronounced in the open court on 06-09-2023 Sd/- (SUCHITRA KAMBLE) JUDICIAL MEMBER Ahmedabad : Dated 06/09/2023 I.T.A No. 366/Ahd/2023 A.Y. 2011-12 Page No. Starline Organics Pvt. Ltd. vs. ITO 5 आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/ आदेश से, उप/सहायक पंजीकार आयकर अपील य अ धकरण, अहमदाबाद