Raghav Madhav Filaments Pvt. Ltd, Surat V. Dy. Commissioner of Income Tax, Circle-2(1)(1), Surat

ITA 782/SRT/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 3710 (ITAT-SURAT)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 14-02-2024
• Assessment Year: 2015-2016
• Appeal Filed On: 09-11-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVIKANT GUPTA
• Keywords: Opportunity of being heard; Principle of natural justice; Condonation of delay; Set aside
• Section: 271(1)(c); 144; 143(3); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM आयकर अपील सं./ITA Nos.781-782/SRT/2023 Assessment Years: (2012-13 & 2015-16) (Physical Court Hearing) Raghav Madhav Filaments Pvt. Ltd., 1027, World Trade Centre, Ring Road, Surat-395002 Vs. Deputy Commissioner of Income Tax, Circle-2(1)(1), Surat, Room No.307, Anavil Business Centre, Adajan, Surat-395009 èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AAFCR 4666 P (अपीलाथŎ/Appellant) (ŮȑथŎ /Respondent) िनधाŊįरती की ओर से /Appellant by Mrs. Chaitali Shah, CA िनधाŊįरती की ओर से /Respondent by Shri Ravi Kant Gupta, CIT-DR & Shri Vinod Kumar, Sr-DR सुनवाई की तारीख /Date of Hearing 15/02/2024 घोषणा की तारीख /Date of Pronouncement 22/02/2024 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned both appeals filed by the assessee, pertaining to Assessment Years 2012-13 and 2015-16, are directed against the separate orders passed by the National Faceless Appeal Centre, Delhi [in short “NFAC/Ld. CIT(A)”] both dated 18.07.2023, which in turn arise out of separate orders passed by Assessing Officer u/s 271(1)(c) and under section 144 / 143(3) of the Income Tax Act, 1961 (hereinafter referred to as “the Act”). 2. Since both these appeals pertain to same assessee, therefore both these appeals have been clubbed and heard together and a 2 ITA No.781-782/SRT/2023/AYs.12-13 & 15-16 Raghav Madhav Filaments Pvt. Ltd. consolidated order is being passed for the sake of convenience and brevity. 3. Learned Counsel submitted that assessee’s appeal in ITA No.782/SRT/2023, relates to quantum proceedings u/s 144 / 143(3) of the Act, however, assessee’s appeal in ITA No.781/SRT/2023 relates to penalty proceedings u/s 271(1)(c) of the Act. In both these cases, there are delay in filing appeals for 55 days. The assessee submitted petition for condonation of delay. The contents of the petition for condonation of delay are same and identical in both the cases, which are reproduced below: “1) That we received the separate orders passed u/s 250 on 18.07.2023 for A.Y 2012-13 & 2015-16. Against the said orders the assessee was required to file appeals on or before 16.08.2023. Against the said orders, the appeals were filed belatedly on 10.11.2023 causing delay of 55 days. 2) That the appeal could not be filed in time as the appellate order communicated to the assessee physically and it was sent to the e-mail address of the assessee’s previous counsels. 3) That in Form No.35, the e-mail address of the counsels were mentioned but in the ITD profile the e-mail address of the assessee- company was mentioned. 4) That after the dismissal of the appeals by CIT(A), the Assessing Officer started proceedings u/s 179 against the director of the company for recovery of demand on 13.09.2023 and the notice to this effect was sent to the e-mail address of the director. This e-mail was opened by the director of the assessee company Shri Aniruddh Pankaj Gupta in the last week of September. In connection with these proceedings, the father of the director of the company, Shri Sanjay Gupta approached CA Rasesh Shah as he happened to be the college mates of CA Rasesh Shah. 5) That thereafter, the office of CA Rasesh Shah checked the ITD portal of the company and found that the appellate orders were passed by the CIT(A) ex-parte and therefore the office of the CA Rasesh Shah prepared and filed appeal belatedly on 10.11.2023 causing delay of 55 days. 6) We beg to condone the delay in filing of the appeals before honourable Tribunal.” 3 ITA No.781-782/SRT/2023/AYs.12-13 & 15-16 Raghav Madhav Filaments Pvt. Ltd. 5. The Ld. Counsel stated that due to communication gap, the delay in filing appeals were occurred. The order of ld CIT(A) was sent to the e-mail address of the assessee’s previous Counsel who do not suppose to file the appeal before the Tribunal and later on the appellate order was communicated to the assessee physically, hence delay in filing the appeal has occurred. Therefore, Ld. Counsel contended that sufficient cause and reasons were explained in the petition for condonation of delay and based on the reasons given in the petition for condonation of delay, the delay of 55 days in filing the appeals, in both the cases, may be condoned. 6. On the other hand, Ld. CIT-DR for the Revenue has strongly objected the prayer for condonation of delay. He pointed out that such delay cannot be condoned on such flimsy reasons. The Ld. CIT-DR finally stated that appeal of the assessee may be dismissed. 7. We have heard both the parties on this preliminary issue. We note that appellate order was not communicated to the assessee physically and it was communicated through e-mail of previous counsel of assessee, which is stated in Form No.35, and not communicated to the e-mail of assessee-company. When the Director of assessee-company opened the e-mail portal on 30.09.2023 then he came to know about the order of NFAC/Ld.CIT(A), therefore the minor delay has occurred due to communication gap and hence such delay may be condoned. We note that reasons given in the affidavit for condonation of delay were convincing and these reasons would constitute reasonable and 4 ITA No.781-782/SRT/2023/AYs.12-13 & 15-16 Raghav Madhav Filaments Pvt. Ltd. sufficient cause for the delay in filing both the appeals. We, therefore, condone the delay in assessee’s both appeals and admit for hearing. 8. Mrs. Chaitali Shah, Learned Counsel for the assessee at the outset, argued that impugned both orders passed by NFAC/Ld. CIT(A) are ex parte orders. The Ld. Counsel stated that during the appellate proceedings the assessee did not appear before NFAC/Ld.CIT(A) due to non-receipt of physical hearing of notice, therefore, NFAC/Ld.CIT(A), passed ex parte, orders, which are against the principle of natural justice. There is no adjudication on merit by NFAC/Ld.CIT(A) although statement of facts and assessment order was available before NFAC/Ld. CIT(A). The Ld. Counsel therefore contended that one more opportunity should be given to the assessee to plead these cases before Ld. CIT(A). That is, the Ld. Counsel submitted that in both the appeals, assessee has filed statement of facts in a detailed manner, however, Ld. CIT(A) did not consider the statement of facts, filed by the assessee for adjudication on merit. There is no adjudication by the Ld.CIT(A) in both the appeals as per mandate of provisions of Section 250(6) of the Act. Besides, assessee could not appear before Ld. CIT(A) due to non-receipt of notice of hearing. Therefore, Ld. Counsel for the assessee contended that both the appeals may be remitted back to the file of Ld. CIT(A) for afresh adjudication. 9. On the other hand, Learned CIT-DR for the Revenue argued, that assessee did not appear before NFAC/Ld. CIT(A), despite of issuance of several notices of hearings and it is waste of time of the 5 ITA No.781-782/SRT/2023/AYs.12-13 & 15-16 Raghav Madhav Filaments Pvt. Ltd. lower authorities, if the matter is remitted back to the file of Ld.CIT(A). If the appeals of assessee are remitted back to the file of Ld.CIT(A) inspite of giving lot of opportunities then it would be tantamount of wasting of time and resources of the Revenue, therefore both appeals of the assessee should be dismissed at this stage. The Ld. CIT-DR submitted that there is no meaning to give further inning to the assessee, if the assessee does not wish to prosecute both the appeals. Therefore, Ld.CIT-DR for the Revenue prayed before Bench that both the appeals should be dismissed and addition made by the Assessing Officer may be confirmed. 10. We have heard both the parties. Considering the above facts, we also note that NFAC/Ld. CIT(A) has not passed the order after considering the submission of assessee and assessment order. The order of Ld. CIT(A) is not as per the mandate of provision of Section 250(6) of the Act. Hence, we are of the view that one more opportunity should be given to the assessee to plead its case before the Ld. CIT(A). We note that it is settled law that principles of natural justice and fair play require that the affected party is granted sufficient opportunity of being heard to contest its case. Accordingly, we set aside both the orders of NFAC/Ld. CIT(A) and restore the issue back to the file of the Ld.CIT(A) for fresh adjudication on merit. We also direct the assessee to furnish relevant documents and details before the Ld.CIT(A), as and when required by him and assessee shall co-operate in the proceedings before the Ld.CIT(A) for disposal of its case. For statistical purposes, both the appeals of the assessee are treated as allowed. 6 ITA No.781-782/SRT/2023/AYs.12-13 & 15-16 Raghav Madhav Filaments Pvt. Ltd. 11. In combine result, both the appeals filed by the assessee are allowed for statistical purposes. A copy of the instant common order be placed in the respective case file(s). Order is pronounced on 22/02/2024 in the open court. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER स ू रत/Surat Ǒदनांक/ Date: 22/02/2024 DKP Outsourcing Sr.P.S Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // True Copy // Assistant Registrar/Sr. PS/PS ITAT, Surat