M/S. LALITA DISTRIBUTORS,CUTTACK vs. ITO, WARD-2(3), CUTTACK, CUTTACK

First we shall take up the appeal of the assessee filed in ITA No.191/CTK/2023 for the assessment year 2008-2009, wherein the Registry has pointed out 165 days of delay in filing the same before the Tribunal. In this regard, the assessee has filed an application for condonation of delay along with affidavit stating sufficient reasons for delay therein. Ld. Sr. DR did not object to condone the delay. In view of 2 ITA Nos.191&192/CTK/2023 the above and considering the facts and circumstances of the case, the delay of 165 days in filing the present appeal is condoned and the appeal is heard finally.

It was submitted by the ld. AR that the issue in appeal relates to the write off of bad debts of Rs.50,000/-. It was the submission that the Tribunal has restored the issues to the file of ld. AO for verification as to whether the commission income which was written off as bad debts had been offered by the assessee during the earlier assessment years. It was submitted by the ld. AR that the AO had given effect to the order of the Tribunal vide his order u/s.251 of the Act dated 29.09.2015 without giving opportunity to the assessee to prove that the commission income had been offered to tax. It was the further submission that on appeal to the ld.CIT(A) the same was in the physical form but as there was a change in the procedure for filing of the appeal before the ld.CIT(A) into the electronic form and the assessee being ignorant of the procedure had responded to the notice issued by the ld. CIT(A) explaining as to why the bad debt is liable to be allowed. It was the submission that consequently the ld. CIT(A) treated the manual appeal filed by the assessee as nonest. It was the submission that the issue may be restored to the file of AO for readjudication after granting the assessee adequate opportunity to prove that the commission income had been actually offered to tax as income earlier.

In reply, ld.Sr. DR submitted that the non-filing of the appeal before the ld. CIT(A) in the electronic form should not be condoned and the appeal of the assessee is liable to be dismissed.

I have considered the rival submission. As it is noticed that the issue as to whether the filing of the appeal in physical form and then to be converted into the electronic form is a technical issue and it is trite law that when technicality is pitted against substantial justice, the substantial justice is to prevail. Further it is noticed that when giving effect to the order of the Tribunal in ITA No.249/CTK/2014 dated 05.02.2015 the AO vide his order u/s.251 of the Act dated 29.09.2015 had not given opportunity to the assessee to substantiate his case even though the Tribunal had categorically given a direction to the AO to verify the claim in the profit and loss account. This being so, in the interest of substantial justice, the issue is restored to the file of AO for readjudication after granting the assessee adequate opportunity of being heard. Thus, the appeal of the assessee in A.Y.2008-2009 is partly allowed for statistical purposes. 6. Now, we shall decide the appeal of the assessee filed for A.Y.2009- 2010 in ITA No.192/CTK/2023. In this appeal, ld.AR submitted that the ld. CIT(A) while passing the impugned order has not given proper opportunity of hearing to the assessee, which is in violation of principle of natural justice. Therefore, ld. AR submitted that one more opportunity may kindly be provided to the assessee to represent its case before the ld. CIT(A) in the interest of justice.

Ld.Sr.DR objected to the above contention of the ld.AR and submitted that sufficient opportunity was provided by the ld.CIT(A), however, the assessee could not substantiate its claim. Therefore, it was the prayer of the ld. AR that the appeal of the assessee should be dismissed.

I have considered the rival submissions. A perusal of the impugned order passed by the ld. CIT(A) shows that the assessee has not appeared nor filed any written submission in spite of several opportunities afforded by the ld.CIT(A) in the appellate proceedings, accordingly the ld. CIT(A) dismissed the appeal of the assessee for non-compliance. However, the ld.AR before us submitted that the assessee may be given one more opportunity to produce all the relevant documents and evidences before the ld.CIT(A) to substantiate its claim. In view of the above, in the interest of natural justice, the issues in this appeal are restored to the file of ld. CIT(A) for readjudication after granting the assessee adequate opportunity of being heard. This appeal of the assessee is partly allowed for statistical purposes. 9. In the result, appeal of the assessee in 192/CTK/2023 are partly allowed for statistical purposes. Order dictated and pronounced in the open court on 24/07/2023. Sd/- (जाजज माथन) (GEORGE MATHAN) न्यानयक सदस्य / JUDICIAL MEMBER कटक Cuttack; ददनाांक Dated 24/07/2023 Prakash Kumar Mishra, Sr.P.S.