SHANKAR R, CHENNAI V. ITO NON CORPORATE CIRCLE-4(1), CHENNAI

ITA 615/CHNY/2020

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 5478 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 03-06-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside

Judgement Text

आयकर अपीलीय अिधकरण, ‘बी’ ᭠यायपीठ, चे᳖ई IN THE INCOME TAX APPELLATE TRIBUNAL ‘B’ BENCH, CHENNAI Įी महावीर ͧसंह, उपाÚय¢ एवं Įी मनोज क ु मार अĒवाल, लेखा सदèय के सम¢ BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENTAND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER आयकर अपील सं./ITA No.: 615/CHNY/2020 िनधाᭅरण वषᭅ /Assessment Year: 2016-17 Shri Shankar R, No.3, R Block, Pallakumaniyam Nagar, Mylapore, Chennai – 600 079. PAN: BQMPS 1220F vs. The Income Tax Officer, Non-Corporate Circle 2(4), Chennai. (अपीलाथᱮ/Appellant) (ᮧ᭜यथᱮ/Respondent) अपीलाथᱮ कᳱ ओर से/Appellant by : Shri Anandd Babunath, Advocate ᮧ᭜यथᱮ कᳱ ओर से/Respondent by : Shri Ravindra T. Mishra, JCIT स ु नवाई कȧ तारȣख/Date of Hearing : 20.07.2022 घोषणा कȧ तारȣख/Date of Pronouncement : 20.07.2022 आदेश /O R D E R PER MAHAVIR SINGH, VICE PRESIDENT: This appeal by the assessee is arising out of the order of Commissioner of Income Tax (Appeals)-2, Chennai in ITA No.133/CIT(A)-2/2018-19 dated 29.08.2019. The assessment was framed by the ITO, Non-Corporate Ward-2(4), Chennai for the assessment years 2016-17 u/s.143(3) of the Income Tax Act, 1961 (hereinafter the ‘Act’) vide order dated 28.12.2018. 2 ITA No.615/Chny/2020 2. At the outset it is noticed that this appeal is time barred by 117 days and assessee has filed affidavit and petition for condonation of delay. It is noticed that the order of CIT(A) was received by assessee on 10.12.2019 and appeal before Tribunal is to be filed on or before 10.02.20220. But, actually appeal was filed only on 04.06.2020 thereby delay of 117 days. The assessee has filed affidavit stating the following reason:- “2. I state that I was neither informed nor aware of the dismissal of the appeal before the learned Commissioner of Income Tax (Appeals)-2, Chennai, as the appeal order was served at my old residence. However, the appeal order copy was given to in the month of December 2019. I was unable to meet AR till March 2020 & after handing over the order for further appeal COVID lockdown was imposed by MHA and not able to file the appeal immediately. As the AR’s office did not function in that period regularly and filing of this appeal was belatedly before Hon’ble Benches.” 2.1 We noted that the assessee is able to explain the reason from 10.12.2019 to March, 2020 and after that lockdown was imposed in view of the spread of Covid-19 pandemic. The Hon’ble Supreme Court in Miscellaneous Application No.665 of 2021 vide order dated 23.03.2020 has given directions that the delay are to be condoned during this period 15.03.2020 to 14.03.2021 and they have condoned the delay up to 28.02.2022 in Miscellaneous Application No.21 of 2022 vide order dated 10.01.2022. In term of the directions of Hon’ble Supreme Court, we condone the delay in filing of this appeal by assessee and admit the appeal for adjudication. 3 ITA No.615/Chny/2020 3. The ld.counsel for the assessee first of all took us to the Ground No.10(c) as filed in Form No.36, which reads as under:- 10 c) That the CIT(A) erred in dismissing the case in limine for non appearance rather than evaluating the facts of the case is against the principles of natural justice. The AO also failed to call for the confirmation from OLA regarding the nature of receipts to the Appellant under the powers vested under the Act, renders the assessment suffers from surmise and conjecture. 3.1 The ld.counsel for the assessee then took us through the order of CIT(A) and stated that the CIT(A) has simply dismissed the assessee’s appeal for non-prosecution and has not given any finding on merits except para 5, which reads as under:- “5. The materials available on record are statement of facts and grounds of appeal. There is nothing available either by way of explanatory notes or other documents to rebut the AO’s findings on merits. AO’s order, therefore, needs no interference.” 3.2 The ld.counsel stated that even the AO has not understood the issue of aggregation / pooling of call taxi business and he added the entire sale promotion expenses without considering the assessee’s submission. In entirety, he stated that the matter has to go back to the file of AO because the CIT(A)’s order is non-speaking but he requested that the matter can be sent back to the AO for better understanding of facts by the AO. 4 ITA No.615/Chny/2020 4. When these facts were confronted to ld. Senior DR, he could not controvert the fact that the order of CIT(A) is for non- prosecution simpliciter. 5. After hearing both the sides and going through the facts of the case, we set aside the orders of lower authorities that of the AO and the CIT(A) and accordingly, remand the matter back to the file of the AO. The AO is directed to give opportunity of hearing to the assessee and decide the issue after considering the full facts. 6. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 20 th July, 2022 at Chennai. Sd/- Sd/- (मनोज कुमार अᮕवाल) (MANOJ KUMAR AGGARWAL) लेखा सद᭭य /ACCOUNTANT MEMBER (महावीर ᳲसह ) (MAHAVIR SINGH) उपा᭟यᭃ /VICE PRESIDENT चे᳖ई/Chennai, ᳰदनांक/Dated, the 20 th July, 2022 RSR आदेश कᳱ ᮧितिलिप अᮕेिषत/Copy to: 1. अपीलाथᱮ/Appellant 2. ᮧ᭜यथᱮ/Respondent 3. आयकर आयुᲦ (अपील)/CIT(A) 4. आयकर आयुᲦ /CIT 5. िवभागीय ᮧितिनिध/DR 6. गाडᭅ फाईल/GF.