Dewsoft Overseas Pvt. Ltd., New Delhi V. JCIT Spl Range-3, New Delhi

ITA 6489/DEL/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0757 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: B
• Next Hearing Date: 10-10-2022
• Assessment Year: 2014-2015
• Appeal Filed On: 01-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Corroborative evidences; Condonation of delay
• Section: 145; 143(3)

Judgement Text

Page 1 of 7 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘B’: NEW DELHI BEFORE, SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA No.6489/Del/2019 (ASSESSMENT YEAR 2014-15) Dewsoft Overseas Pvt. Ltd. 101, Gagandeep Building 12, Rajendra Place New Delhi-110 008 PAN-AABCD 3196J Vs. JCIT Special Range-3 New Delhi (Appellant) (Respondent) Appellant by None Respondent by Sh. R.S. Yadav, Senior Departmental Representative (“Sr. DR” for short) ORDER PER ANADEE NATH MISSHRA, AM: (A) This appeal by Assessee is filed against the order of Learned Commissioner of Income Tax (Appeals)-3, New Delhi [“Ld. CIT(A)”, for short], dated 02/07/2019 for Assessment Year 2014-15. Grounds taken in this appeal are as under: “1. On the facts and law, the order passed by the learned Commissioner of Income Tax (Appeals) [CIT(A)] is bad both in the eye of law and on facts. ITA No.6489 /Del/2019 Dewsoft Overseas Pvt. Ltd. vs. JCIT Page 2 of 7 2. On the facts and law, the order passed by the learned Commissioner of Income Tax (Appeals) [CIT(A)] is bad both in the eye of law and on facts as is passed ex-party without affording reasonable opportunity of being heard to the assessee. 3. That the Ld. CIT (A) erred in law, on facts and in surrounding circumstances in dismissing, in limine the appeal in ex parte manner merely on a venial flaw, thereby resulting in meritorious matter being thrown out at the very threshold and cause of justice being defeated, for no deliberate fault/default on the part of the appellant. 4. That on facts and law, the learned CIT(A) erred in rejecting the application for condonation of delay of 30 days overlooking the reasonable cause submitted in application that father of director of the assessee company was seriously sick. 5. On the facts and law, the order passed by the learned Commissioner of Income Tax (Appeals) [CIT(A)j is bad both in the eye of law and on facts without considering the merits of the case. 6. On the facts and law, the learned CIT(A) has erred both on facts and in law in conforming the disallowances of Rs.6,31,33,413/- being 60 % of the Expenses incurred by the assessee for the purpose of business, without any basis. 7. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in ignoring that the disallowances have been made without rejecting books of accounts of the assessee u/s 145 of the income Tax Act,1961 which is basic condition for disallowances on estimated basis.. 8. That the appellant craves leave to add, amend or alter any of the grounds of appeal.” (A.1) In this case, assessment order dated 29/12/2016 was passed by the Assessing Officer u/s 143(3) of Income Tax Act, wherein the assessee’s income was determined at Rs.7,27,97,883/- as against returned income of Rs.96,64,470/-. The assessee filed ITA No.6489 /Del/2019 Dewsoft Overseas Pvt. Ltd. vs. JCIT Page 3 of 7 appeal in the office of the Ld. CIT(A) against the aforesaid assessment order. The Ld. CIT(A) dismissed assessee’s appeal vide impugned appellate order dated 02/07/2019; ex-parte qua assessee appellant, in limine, without passing a speaking order on the merits of the grounds of appeal. Firstly, the Ld. CIT(A) refused to condone the delay in filing of the appeal within the prescribed time mentioned in section 249(2) of Income Tax Act. Secondly, the Ld. CIT(A) took adverse view of the fact that notices of hearing issued by the office of the Ld. CIT(A) were not complied with by the assessee. Thus, the assessee’s appeal was dismissed, ex-parte qua the appellant assessee, in limine, without going into the merits of the grounds of appeal, on twin bases: firstly, on account of delay in filing of the appeal; and secondly, because of non-compliance with the notices of hearing. The present appeal before us has been filed by the appellant assessee against the aforesaid impugned appellate order dated 02/07/2019 of the Ld. CIT(A). (A.1.1) At the time of hearing before us, there was no representation from the assessee’s side. In the absence of any ITA No.6489 /Del/2019 Dewsoft Overseas Pvt. Ltd. vs. JCIT Page 4 of 7 representative from the assessee’s side, we heard the learned Sr. DR for Revenue. (A.2) On perusal of the impugned appellate order of the ld. CIT(A), we find that the appellant assessee had requested for condonation of delay in filing of the appeal on the ground that the father of the appellant was seriously sick. But the ld. CIT(A) rejected this prayer of the appellant assessee on the ground that no evidence was filed to support the claim regarding father of the appellant being seriously sick. The assessee being a ‘legal’ person (and not a ‘natural’ person), it is not clear from perusal of impugned order of Ld. CIT(A) as to what is meant by appellant’s father. Also, there is no mention whether any supporting evidences were called for from the assessee. Moreover, in case such evidences were called for, whether the assessee was provided reasonable opportunity to furnish the same is also not stated in the impugned appellate order. In any case, the appellant is a corporate entity and there is no clarity on facts in the impugned appellate order of the Ld. CIT(A) regarding whose father was stated to be seriously sick. ITA No.6489 /Del/2019 Dewsoft Overseas Pvt. Ltd. vs. JCIT Page 5 of 7 (A.2.1) On perusal of section 250(6) of IT Act, it is obvious that the Ld. CIT(A) is required to pass a speaking order on the merits of the grounds of appeal if the appeal is admitted. (A.2.2) At the time of hearing, we sought to know the views of the learned. Sr. DR for Revenue whether the impugned appellate order of Ld. CIT(A) contained full facts regarding rejection of the assessee’s prayer for condonation of delay in filing of the appeal. The learned Sr. DR fairly submitted that all relevant facts were not available in the impugned appellate order of the Ld. CIT(A). He also stated that the impugned appellate order of Ld. CIT(A) may be set aside and the Ld. CIT(A) may be directed to pass a denovo order in accordance with law after providing reasonable opportunity to the assessee. (B) We have heard the learned Sr. DR for Revenue. We have perused the materials on record. We are of the view that sufficient facts have not been mentioned by the Ld. CIT(A) in impugned appellate order dated 15/03/2017 to enable us to take a view on whether rejection of the assessee’s prayer for condonation of delay ITA No.6489 /Del/2019 Dewsoft Overseas Pvt. Ltd. vs. JCIT Page 6 of 7 in filing of the appeal was just and fair in the facts and circumstances of the case. In view of the foregoing; and as the ld. Sr. DR is in agreement with this, we set aside the impugned appellate order dated 15/03/2017 of the Ld. CIT(A) and we direct the Ld. CIT(A) to pass a denovo order for taking a fresh view on whether the assessee’s prayer for condonation of delay in filing of the appeal with the office of ld. CIT(A) is to be accepted. If the Ld. CIT(A), in pursuance of this direction, decides to condone the delay in filing of the appeal in the office of the ld. CIT(A); and thereby, if Ld. CIT(A) accordingly admits the assessee’s appeal, then Ld. CIT(A) is further directed to pass a speaking order on merits of the grounds of appeal, in accordance with law, after providing reasonable opportunity to the assessee, and having due regard for section 250(6) of IT Act. All the grounds of appeal in the present appeal before us are treated as disposed of in accordance with the aforesaid directions. (C) For statistical purposes, the appeal is partly allowed. This order was already pronounced orally on 11 th October, 2022 in Open Court, in the presence of representatives of both ITA No.6489 /Del/2019 Dewsoft Overseas Pvt. Ltd. vs. JCIT Page 7 of 7 sides, after conclusion of the hearing. Now this order in writing is signed today on 14/10/2022. /- Sd/- Sd/- (CHALLA NAGENDRA PRASAD) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated:14/10/2022 Pk Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW, DELHI