Janak Crane P.Ltd, New Delhi V. Addl.CIT, Special Range-5, , New Delhi

ITA 7979/DEL/2019

• Counselvise Citation: [2022] 107 COUNSELVISE.COM (IT) 1147 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2015-2016
• Appeal Filed On: 30-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3); 250

Judgement Text

1 ITA no. 7979/Del/2019 Janak Crane P Ltd. Vs. Addl. CIT IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “C”: NEW DELHI BEFORE NARENDER KUMAR CHOUDHRY, JUDICIAL MEMBER AND DR. BRR KUMAR, ACCOUNTANT MEMBER ITA No. 7979 /DEL/2019 [Assessment Yr: 2015-16] Janak Crane Pvt. Ltd., 5/3, Facility Centre, Mayapuri, Phase-II, New Delhi-110064. PAN- AACCJ1668E Vs Addl. Commissioner of Income-tax, Special Range-5, New Delhi. APPELLANT RESPONDENT Appellant by Ms. SanjuKumari, Ld. Adv. Respondent by Shri Ravi Kant ChoudharyLd. Sr. DR Date of hearing 01.09.2022 Date of pronouncement 01.09.2022 O R D E R PER N.K. CHOUDHRY, JM: This appeal has been preferred by the Assessee/ Appellant herein, against the order dated 26.07.2019, impugned herein, passed by the learned Commissioner of Income-tax (Appeals)-36, New Delhi (in short “Ld. Commissioner”) under Section 250 of the income-tax Act, 1961 (in short ‘the Act”) for the assessment year 2015-16. 2. Brief facts, relevant for adjudication of the instant appeal, are that in the instant case the assessment order dated 29.12.2017 was passed u/s 2 ITA no. 7979/Del/2019 Janak Crane P Ltd. Vs. Addl. CIT 143(3) of the Act by the Assessing Officer, whereby addition of Rs. 40,00,000/- u/s 68 of the Act; disallowances of Rs. 3,60,357/- on account of late deposit of ESI & PF contribution and Rs. 20,97,362/- on account of misc. expenses have been made. 3. The Assessee being aggrieved with the assessment order, preferred first appeal before the Ld. Commissioner. The appellant on 14.5.2019 did not appear before the Ld. Commissioner. Thereafter, the appeal was fixed on 5.7.2019 and 15.7.2019 as well by the Ld. Commissioner. However, on both the dates the appellant sought adjournment. Therefore, it was observed by the Ld. Commissioner that the appellant is not interested in filing any details during the appellate proceedings and to avail the opportunity under the principle of natural justice. As many as three notices were issued through speed post and ITBA portal as noted above. However, it is a matter of record that any kind of documents or details were not submitted by the Authorized Representative of the appellant. The Ld. Commissioner also realized by perusing form no. 35 that assessment order u/s 143(3) was passed on 29.12.2017 whereas the appeal was filed on 3.10.2018. Therefore, there was a delay of 279 days in filing the appeal. Though the Appellant explained the reasons for delay before the Ld. Commissioner to the effect that “the impugned assessment order was received by the Accountant of the appellant who gave it to the chartered accountant of the appellant to prepare the appeal. The Accountant of the company,left the employment of the appellant company without informing the company and without handing over the impugned order to any of the directors. Even the chartered accountant of the company has also resigned. The impugned order actually came to the knowledge of the directors on 10.09.2018 when the accountant of the company came for full and final 3 ITA no. 7979/Del/2019 Janak Crane P Ltd. Vs. Addl. CIT settlement. The appellant hastened to file the above captioned appeal. However, technically this appeal is filed beyond 30 days of the receipt of the impugned order by Accountant. Due to several serious medical problems in the family of the directors, as the directors were not attending the office and hence were unaware of the order. In these circumstances, you are requested to kindly condone the delay”. Though the Ld. Commissioner considered the said claim of the Appellant, however, declined to condone the delay on the ground that the reasons given by the Appellant is that the Chartered Accountant did not submit the appeal. This reason is not supported by any evidence but seems to be an “afterthought” on the part of the appellant. The Assessee failed to explain that delay in filing the appeal was due to sufficient cause. 4. The Assessee being aggrieved with the impugned order preferred the instant appeal. 5. Heard the parties and perused the material available on record. The Ld. Commissioner fixed the appeal filed before him on three occasions i.e. 14.5.2019; 15.7.2019; and 26.7.2019. On one occasion i.e. 14.5.2019 the Assessee did not attend the proceedings. However, on 15.7.2019 and 26.7.2019 sought adjournment. The Ld. Commissioner without granting the adjournment sought on 26.7.2019, proceeded with the appeal and dismissed the appeal of the Appellant in limine on the ground of delay of 279 days in filing of the appeal. 6. We observe that in the assessment proceedings as well, the Appellant on various occasions sought adjournment as it clearly reflects in para no. 3 of the assessment order. Though the conduct of the Appellant seems to be 4 ITA no. 7979/Del/2019 Janak Crane P Ltd. Vs. Addl. CIT irresponsible as it has demonstrated lackadaisical and very casual approach towards Assessment and Appellate proceedings and has not taken the statutory notices issued to it with seriousness and sincerity such notices deserve and the proceedings under the Act cannot be left to the unilateral and unjustified decision of the appellant to attend or not to attend the hearing at its whims and fancies. However, considering the peculiar facts and circumstances in totality as if the case of the Appellant is to be decided on merit, then no prejudice shall be caused to the Revenue Department and even otherwise the Revenue Department is under obligation to levy the tax which is due and by authority of law and therefore in the interest justice and for just decision of the case, we are inclined to remand the instant case to the file of the Ld. Commissioner for decision afresh. Suffice to say by giving proper opportunity of being heard to the Appellant. The Appellant is also directed to cooperate with the proceedings before the Ld. Commissioner and shall appear as and when would be required and to file the relevant documents as would be needed for the proper adjudication of the appeal and in case of further default shall not be entitled for any kind of leniency . 7. In the result, appeal filed by the Appellant stands allowed for statistical purposes. Order pronounced in open court on 01.09.2022. Sd/- Sd/- (DR. BRR KUMAR) (N.K. CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER *MP*