M/s. R & B Denims Limited, Surat V. Dy. Commissioner of Income Tax, Circle, 2(1)(1), Surat, Surat

ITA 851/SRT/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 7585 (ITAT-SURAT)
• Duration Of Justice: 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-04-2024
• Assessment Year: 2016-2017
• Appeal Filed On: 07-12-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay; Set aside
• Section: 147; 68; 143(3); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI BIJAYANANDA PRUSETH, ACCOUNTANT MEMBER ITA No. 851/Srt/2023 (Assessment Year: 2016-17) (Physical hearing) M/s R & B Denims Limited, Plot No. 467, Sachin Palsana Highway, Surat-394315. PAN No. AAFCR 0142 Q Vs. I.T.O. (NeAC), Delhi, (Jurisdictional AO, DCIT, Circle 2(1)(1), Surat). Appellant/ Assessee Respondent/ Revenue Assessee represented by Ms. Purvi Chandarana, C.A. Department represented by Shri Vinod Kumar, Sr.DR Appeal instituted on 08/12/2023 Date of hearing 29/04/2024 Date of pronouncement 29/04/2024 Order under Section 254(1) of Income Tax Act PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the assessee is directed against the order of the National Faceless Appeal Centre, Delhi (NFAC)/learned Commissioner of Income Tax (Appeals) [in short, the ld. CIT(A)] dated 25/05/2023 for the Assessment Year (AY) 2016-17. Following grounds of appeal have been raised by the assessee. “1. On the facts and in the circumstances of the case as well as law on the subject, the ld. CIT(A) NFAC has grievously erred in dismissing the appeal by passing non-speaking order treating the same as infructuous as per clause 4(2) of the Direct Tax Vivad Se Vishwas Act, 2020 as against the fact that the subject matter for which declarations were made in DTVSVS 2020 were different from the subject matter of the appeal under consideration. Hence, it is prayed that the appeal be restored back to the CIT(A) for passing speaking order and do justice. 2. Appellant craves liberty to add, alter or delete any ground(s) either before or in the course of the hearing of the appeal.” 2. Rival submissions of both the parties have been heard and record perused. The learned Authorised Representative (ld. AR) of the assessee fairly submits that ITA No. 851/Srt/2023 M/s R&B Denims Ltd Vs ITO 2 there is delay of 170 days in filing appeal before the Tribunal. The assessee has already filed an application dated 08/12/2023 for condonation of delay in filing appeal. The ld. AR of the assessee submits that the impugned order was passed by the ld. CIT(A) on 25/05/2023 and the assessee was required to file appeal on or before 24/07/2023. The present appeal was filed on 08/12/2023. The ld. AR of the assessee submits that there was no intentional or deliberate delay in filing appeal. The assessee filed appeal before ld CIT(A) on 27/04/2023, against the addition in the assessment order. The appeal of assessee was straightway dismissed vide order dated 25/05/2023. The assessee was waiting for notice of hearing of appeal. No notice of hearing of appeal was issued by the ld. CIT(A). The ld. CIT(A) straightway rejected the appeal of assessee by taking view that the assessee has settled his case under Vivad Se Vishwas Scheme (VSVS). The staff of assessee came to know about the dismissal of appeal by ld CIT(A) when they checked on ITBA portal about the notices if any issued. The assessee came to know about dismissal of their appeal in first week of December, 2023 by the ld. CIT(A). The ld. AR of the assessee submits that the assessee has good case on merit and is likely to succeed, if the case of assessee is considered and decided on merit. 3. On merit of the case, the ld. AR of the assessee submits that initially the assessee for A.Y. 2016-17 was completed under Section 143(3) of the Income Tax Act, 1961 (in short, the Act) on 26/12/2018 wherein the Assessing Officer made addition under Section 68 of the Act. Against the addition under Section 68 of the Act, the assessee filed appeal before the ld. CIT(A). During the pendency of appeal before the ld. CIT(A), the assessee settled the dispute with ITA No. 851/Srt/2023 M/s R&B Denims Ltd Vs ITO 3 the department by availing benefit of VSVS and paid due taxes on the additions under Section 68 of the Act. However, later on, the case of assessee was reopened under Section 147 of the Act and the assessment was completed under Section 147 r.w.s. 144B of the Act by making disallowance under Section 14A of the Act of Rs. 4,60,920/-. Against the disallowance of Section 14A, the assessee filed appeal before the ld. CIT(A) being appeal No. NFAC 2015- 16/10236659 which was independent of earlier appeal wherein the assessee availed benefit of VSVS, thus, this appeal is to be adjudicated independently on merit. 4. On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the revenue on the plea of condonation of delay submits that the assessee has not explained the delay in a proper manner. However, the ld. Sr. DR for the revenue submits that in case, the Bench is of the view that the delay deserves to be condoned, the matter may be restored back to the file of ld. CIT(A) for the deciding the appeal on merit. 5. We have considered the submissions of both the parties and perused the material on record carefully. On considering the submission of ld. AR of the assessee, we find that the appeal before the ld. CIT(A) was filed against the addition/ disallowance under section 14A made in the assessment order passed under Section 147 r.w.s. 144 of the Act dated 24/03/2023. The ld. CIT(A) wrongly presumed that the assesse has opted for VSVS and made final payment of tax in turn of Form No. 5 dated 29/12/2021. We find that the issue before the ld. CIT(A) was separate and independent which was arising out of addition made subsequently in the assessment order dated 24/03/2023. In ITA No. 851/Srt/2023 M/s R&B Denims Ltd Vs ITO 4 fact, the assessee settled the dispute with the department against the addition made in the assessment order dated-26.12.2018. Thus, the order passed by the ld. CIT(A) is set aside, being based on wrong assumption of fact. 6. So far as delay in filing of appeal before this Tribunal is concerned, we find merit in the submission of ld. AR of the assessee that the ld. CIT(A) dismissed the appeal of assessee within 40 days of filing appeal, that too without issuing any notice of hearing of appeal. We also find a merits in the submissions of ld. AR of the assessee that the delay in filing appeal is not intentional or deliberate as they were waiting for notice of ld. CIT(A) for making response, and the appeal was straightway dismissed by the ld. CIT(A). Considering the overall facts and circumstances of the case, we find that the assessee has shown reasonable and sufficient cause for seeking condonation of delay in filing present appeal before the Tribunal. Therefore, the delay in filing appeal before this Tribunal is condoned. 7. Considering the fact that we have already set-aside the order of ld. CIT(A) which was passed on misconception of facts, therefore, grounds of appeal raised by the assessee is restored back to the file of ld. CIT(A) to decide the same on merit. Needless to direct that before passing the order, the ld. CIT(A) shall grant fair and reasonable opportunity of hearing to the assessee. The assessee is also directed to be more vigilant in future and not to cause further delay and seek adjournment without any valid reason and to furnish all the details and his submissions and evidences on various grounds of appeal raised by it, as soon as possible, if so desired without any further delay. In the result, ITA No. 851/Srt/2023 M/s R&B Denims Ltd Vs ITO 5 the grounds of appeal raised by the assessee are allowed for statistical purposes. 8. In the result, this appeal of assessee is allowed for statistical purposes only. Order announced in open court on 29 th April, 2024. Sd/- Sd/- (BIJAYANANDA PRUSETH) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat, Dated: 29/04/2024 *Ranjan Copy to: 1. Assessee 2. Revenue 3. CIT 4. DR By order 5. Guard File Sr. Private Secretary, ITAT, Surat