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Income Tax Appellate Tribunal, “SMC” BENCH,
Before: SHRI ABY T. VARKEY, JM
PER ABY T. VARKEY, JM: This is an appeal preferred by the assessee against the order of the Ld. CIT(A)/NFAC, Delhi dated 25.02.2023 for AY. 2010-11. 2. The main grievance of the assessee is against the action of the Ld. CIT(A) passing an ex-parte order without giving adequate opportunity of being heard to the assessee.
Brief facts are that the assessee had filed return of income on 30.09.2010 declaring total income of Rs.3,29,840/-. Later, the assessment was scrutinized u/s 143(3) of the Income Tax Act, 1961 (hereinafter “the Act”) on 28.12.2012 determining income at Rs.4,52,000/- (by making disallowance/addition on account of interest on inter-corporate deposits of Rs.1,22,160/)-. However by order dated 27.03.2017, thereafter, the AO suo-moto exercised his power u/s 154 of the Act and determined the total income at Rs.22,17,610/- by 2 A.Y. 2010-11 Solar Packaging Pvt. Ltd. making an addition/disallowance of Rs.11,10,808/- u/s 14A r.w.s Rule 8D while calculating books profit u/s 115JB of the Act and disallowed expenses amounting to Rs.6,54,803/- (agriculture expenses). Aggrieved, the assessee preferred an appeal before the Ld. CIT(A) on 14.03.2018 against the AO order u/s 154 of the Act. The Ld. CIT(A) dismissed the appeal taking note that there was delay in filing of appeal before him (more than six Months according to Ld CIT(A)) and since assessee failed to file condonation application and didn’t comply with the three (3) notices sent by him, he dismissed the appeal without going into the merits of the appeal. Aggrieved, the assessee is before us this Tribunal.
I have heard both the parties and perused the records. According to the assessee, it was not aware of the suo-motto action taken by the AO u/s 154 of the Act dated 27.03.2017 [after the original assessment u/s 143(3) of the Act was passed on 28.12.2012] and that assessee did not get any notice of rectification of assessment order dated 28.12.2012. Consequent to such omission (not serving notice of rectification of assessment order u/s 154 of the Act) on the part of AO, assessee came to know about the impugned action of the AO only when demand was raised. So the omission on the part of assessee to file the appeal (against the action of AO u/s 154 of the Act dated 27.03.2017) cannot be said to be deliberate. Immediately after knowledge of the impugned action of AO, the assessee had filed the appeal before the Ld. CIT(A) and therefore, delay was caused in filing of the appeal before the Ld. CIT(A). Justifying the action of assessee,
3 A.Y. 2010-11 Solar Packaging Pvt. Ltd. the Ld. AR submitted that the assessee was in the dark and not aware of the proceedings u/s 154 of the Act before the AO. And the omission to file the appeal within time of limitation was not deliberate or intentional. Be that as it may, it is noted that the AO has suo-motto passed order (rectification order) u/s 154 of the Act by order dated 27.03.2017 in respect of assessment order u/s 143(3) of the Act dated 28.12.2012; and perusal of the section 154 order would reveal that this action of AO itself is ex-parte without hearing the assessee. Since the AO’s action as well as the impugned action Ld. CIT(A) confirming addition/disallowances are without hearing the assessee, for the interest of justice and fair play, I set aside the impugned order of the Ld. CIT(A) and restore the issue back to the file of the Ld. CIT(A) by condoning the delay in filing of appeal before him; and further direct him to decide all the grounds of appeal raised by the assessee u/s 250(6) of the Act. The assessee is at liberty to file relevant documents necessary for the adjudication of the grounds of appeal in accordance to law and the Ld. CIT(A) may call for remand report from AO, if it is found necessary in accordance to law.
In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on this 30/06/2023. (ABY T. VARKEY) JUDICIAL MEMBER मुंबई Mumbai; दिनांक Dated : 30/06/2023. Vijay Pal Singh, (Sr. PS)
4 A.Y. 2010-11 Solar Packaging Pvt. Ltd. आदेश की प्रनिनलनि अग्रेनर्ि/Copy of the Order forwarded to : अपीलार्थी / The Appellant 1. प्रत्यर्थी / The Respondent. 2. 3. आयकर आयुक्त / CIT दवभागीय प्रदतदनदि, आयकर अपीलीय अदिकरण, मुंबई / DR, ITAT, Mumbai 4. 5. गार्ड फाईल / Guard file.
आदेशधिुसधर/ BY ORDER, सत्यादपत प्रदत //// उि/सहधयक िंजीकधर /(Dy./Asstt.