M/S SIVAMANI WINES,PURUCHERRY vs. ITO,WARD-1, , NAGAPATTINAM

आदेश / O R D E R PER MANJUNATHA.G, AM:

This appeal filed by the assessee is directed against the order of the

Commissioner of Income Tax (Appeals), Income Tax Department, National

Faceless Appeal Centre (NFAC), Delhi, dated 16.03.2023, and pertains to

assessment year 2016-17.

in IMFL and filed its return of income for AY 2016-17 on 22.02.2017

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admitting total income of Rs.5,30,820/-. The case was selected for scrutiny

and the assessment has been completed u/s.143(3) of the Income Tax Act,

1961 (in short “the Act") on 24.12.2018, and determined total income of

Rs.1,04,97,317/- by making various additions including additions towards

disallowance of expenditure incurred in cash u/s.40A(3) of the Act,

additions towards unproved sundry creditors and additions towards

difference between purchases as per books of accounts and purchases

recorded in the ITS Database. The assessee carried the matter in appeal

before the First Appellate Authority, and has filed the appeal on 28.02.2019

with a delay of 35 days. The assessee has filed petition for condonation of

delay and explained the reasons for delay in filing of the appeal. The

Ld.CIT(A) dismissed the appeal filed by the assessee in limine for non-

compliance of provisions of Sec.249(3) of the Act, on the ground that the

reasons given by the assessee for delay in filing of the appeal is not

sufficient and bona fide. Aggrieved by the order of the Ld.CIT(A), the

assessee is in appeal before us.

submitted that the Ld.CIT(A) passed ex parte order and dismissed the

appeal filed by the assessee in limine on technical grounds for delay in

filing of the appeal. He further submitted that under similar circumstances,

the ITAT Chennai Bench for earlier assessment year, has set aside the

appeal to the Ld.CIT(A) for fresh adjudication. Therefore, requested to set

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aside the issue to the file of the Ld.CIT(A) to give reasonable opportunity

of hearing to the assessee to explain its case.

the Ld.CIT(A), submitted that the assessee is a habitual offender which is

evident from the fact that even for earlier assessment year, the Ld.CIT(A)

dismissed appeal filed by the assessee for non-prosecution. Further, for

the impugned assessment year, although, the Ld.CIT(A) has given

sufficient opportunities, the assessee failed to appear before the Ld.CIT(A)

and file necessary details which is evident from Para No.4 of the order of

the Ld.CIT(A). Therefore, there is no reason to give one more opportunity

of hearing to the assessee, and thus, the order of the Ld.CIT(A) should be

upheld.

record and gone through orders of the authorities below. Admittedly, the

Ld.CIT(A) dismissed the appeal filed by the assessee in limine for delay in

filing of the appeal. According to the Ld.CIT(A), the assessee could not

explain the reasons for 35 days delay in filing of the appeal and reasons

given by the assessee does not come under reasonable cause for

condonation of delay. It was the explanation of the assessee that the

appeal could not be filed due to illness of both partners, and further, the

assessee does not get any undue benefit by filing appeal with delay. We

find that although, the Ld.CIT(A) dismissed the appeal filed by the assessee

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in limine without condoning the delay in filing of the appeal, but the appeal

has been dismissed on technical ground without deciding the issues on

merits. It is a well settled principle of law by the decision of various courts

that even in a case of non-appearance by the assessee, appellate authority

should decide and dispose off the appeal on merits. In the present case,

the Ld.CIT(A) dismissed the appeal filed by the assessee on technical

grounds and however, not adjudicated the issues on merits. We further

noted that under similar circumstances, the ITAT Chennai Benches in the

assessee’s own case for AY 2015-16 in ITA No.694/Chny/2023 dated

31.08.2023 restored the issue to the file of the Ld.CIT(A) for fresh

adjudication. Therefore, considering the facts and circumstances of the

case and also consistent with view taken by the co-ordinate Bench in the

assessee’s own case for earlier assessment year, we are of the considered

view that the appeal needs to go back to the file of the Ld.CIT(A) to give

one more opportunity of hearing to the assessee. Thus, we set aside the

order of the Ld.CIT(A) and restore the issue back to the file of the Ld.CIT(A)

for fresh adjudication. The Ld.CIT(A) is directed to decide the issue after

providing reasonable opportunity of hearing to the assessee. We further

direct the Ld.CIT(A) to condone the delay of 35 days in filing of the appeal,

because, the reasons given by the assessee in his petition before the

Ld.CIT(A) are bona fide and are comes under reasonable cause for

condonation of delay. Needless to say, assessee shall appear before the

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Ld.CIT(A) and file necessary evidences to justify its case without seeking

any adjournment.

purposes.

Order pronounced on the 20th day of October, 2023, in Chennai.

Sd/- Sd/- (वी. दुगा� राव) (मंजूनाथा.जी) (MANJUNATHA.G) (V. DURGA RAO) लेखा सद�य/ACCOUNTANT MEMBER �याियक सद�य/JUDICIAL MEMBER चे�ई/Chennai, �दनांक/Dated: 20th October, 2023. TLN आदेश क� �ितिलिप अ�ेिषत/Copy to: 1. अपीलाथ�/Appellant 3. आयकर आयु�/CIT 5. गाड� फाईल/GF 2. ��यथ�/Respondent 4. िवभागीय �ितिनिध/DR