YONA SMELTERS PRIVATE LIMITED,VISAKHAPATNAM vs. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-5(1), VISAKHAPATNAM

These appeals have been preferred by the assessee against the separate orders dated 13/03/2019, 14/03/2019 & 14/03/2019 impugned herein passed by the ld. Commissioner of Income Tax (Appeals)-9 [for short, “ld. Commissioner”], Hyderabad u/sec. 250(6) of the Income Tax Act, 1961 (hereinafter referred to as "Act") for the A.Ys. 2010-11, 2012-13 & 2013-14.

All the three appeals relates to the same Assessee and have been decided exparte by the ld. Commissioner. Therefore, for the sake of convenience, facts of have been taken into consideration for disposal of all the appeals under consideration and the result of ITA No. 634/VIZ/2019 shall apply mutatis mutandis to the connected appeals herein.

At the outset, it was observed that there is a delay of 174 days in filing of the appeal. The Assessee by filling its application with supporting affidavit for condonation of delay has claimed that business of company went into rough weather due to severe power cuts and the manufacturing operations of the company came to complete halt during the impugned financial year relevant to the assessment year under appeal. Therefore, the Assessee filed its return of income declaring loss at “Nil” for the said assessment year. The Assessee is dragged into various litigations including the matters like SARFAESI, VAT etc. in various forums including Hon’ble Supreme Court and the High Court. There is a complete closure of manufacturing activity and other business crippled financial position, because of which company has also been closed, therefore there is no staff to look after the affairs of the company which resulted into delay of 174 days in filing of the instant appeal.

Ld. DR did not refute the claim of the Assessee.

Considering the peculiar facts and circumstances and the reasons stated by the Assessee, cause for delay in filing of the appeal seems to be plausible and sufficient hence, for the ends of justice, we deem it appropriate to condone the delay. Consequently, the delay of 174 days in filing the instant appeal stands condoned.

Now coming to the merits of the case. As it appears from the impugned order passed by the ld. Commissioner, various opportunities have been given to the Assessee. Though on some of the occasions the Assessee appeared and sought adjournments to produce the evidence, however most of the times not attended the proceedings. Therefore, finding no option the ld. Commissioner affirmed the additions made by the AO. It is not in controversy as stated in the application for condonation of delay that the manufacturing operations of the Assessee has been completely closed and the Assessee is contesting various litigations before the various forums and that could be a plausible reason for not appearing before the ld. Commissioner. Even otherwise we realise that the ld. Commissioner did not pass the order by giving independent finding in all cases and just affirmed the orders of the AO except partly allowing the appeal vide impugned order dated 14th March 2019 which is also under challenge in ITA No.635/VIZ/2019.

It is to be noted that in the Assessee has raised three issues. Though, ld. Commissioner gave decision on one issue in favour of the Assessee, however, sustained the other two issues without giving any independent finding and just partly affirmed the order of the AO.

Considering the peculiar facts and circumstances, in our considered view, it would be appropriate to set aside the orders passed by the ld. Commissioner to the extent under challenge and to remand back the cases to the file of the ld. Commissioner for decision afresh by giving independent finding, on the issues which remained undecided by the ld. Commissioner. Hence, ordered accordingly.

In the result, all the appeals filed by the assessee stands allowed for statistical purposes.