M/S. BHANDARI FOILS AND TUBES LTD,CHENNAI vs. DCIT, CORPORATE CIRCLE 1(2), CHENNAI

These three appeals filed by the assessee are directed against separate, but identical order passed by the learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi, all dated 26.06.2023, 27.06.2023 & 26.06.2023 and pertains to assessment years 2009-10 to 2011-12, respectively. Since, facts are identical and issues are common, for the sake of convenience, these

The brief facts of the case are that, the appellant company had filed its return of income for assessment years 2009-10 to 2011-12 u/s. 139(1) of the Income-tax Act, 1961 (hereinafter referred to as “the Act”). The assessment has been completed u/s. 144 r.w.s. 147 of the Act on 29.03.2016, and determined total income of Rs. 7,55,62,695/- for assessment year 2009-10, Rs. 9,89,64,678/- for assessment year 2010-11 & Rs. 7,20,29,912/- for assessment year 2011- 12. The appellant filed appeals against the order of the assessment before the ld. CIT(A) and said appeals has been filed with a delay of 6 days for assessment year 2009-10, 7 days for assessment year 2010-11 & 8 days for assessment year 2011-12, as noticed by the ld. CIT(A) in Para 2 of their orders. According to the ld. CIT(A), the appellant did not specify the delay in filing of appeals in Form no. 35 filed for all assessment years and also not filed any petition for condonation of delay. Therefore, the ld. CIT(A) dismissed appeals filed by the assessee for all three assessment years at admission level and rejected appeals in absence of :-3-: 917, 918 & 919/Chny/2023 condonation of delay. However, decided the issue involved in appeals on merits and sustained additions made by the Assessing Officer. Aggrieved by the ld. CIT(A) order, the assessee is in appeal before us.

The Ld. Counsel for the assessee, Shri. D. Anand, Advocate, submitted that the assessment order passed by the Assessing Officer is ex-parte. The ld. CIT(A) also passed ex- parte appellate order and dismissed appeals filed by the assessee without condoning delay in filing of appeals. But, the ld. CIT(A) decided the issue on merits contrary to the law. Therefore, in the interest of justice, the appeals may be set aside to the file of the Assessing Officer to give one more opportunity of hearing to the assessee.

The ld. Sr.AR. Shri. AR V Sreenivasan, Addl. CIT, on the other hand supporting the order of the ld. CIT(A) submitted that the assessee is a habitually non-cooperator to the proceedings, which is evident from the exparte assessment order passed by the Assessing Officer. The non-cooperation from the assessee is constituted even before the ld. CIT(A), which is evident from the order passed by the ld. CIT(A). The :-4-: 917, 918 & 919/Chny/2023 assessee could not adduce proper reasons for non-appearance. Therefore, he submitted that the appeals should not be set aside to the file of the Assessing Officer/CIT(A).

Per contra, the Ld. Counsel for the assessee submitted that, there is a mistake from the assessee side for not appearing before the Assessing Officer and CIT(A). However, the fact remains that the appeals of the assessee has been decided unheard contrary to principle of natural justice. Therefore, the appeals may be set aside within a nominal cost on the assessee for not responding to the hearings before the ld. CIT(A).

We have heard both the parties, perused materials available on record and gone through orders of the authorities below. Admittedly, there is a small delay of 6 days to 8 days in appeals filed by the assessee for three assessment years. The assessee neither specified the delay in Form no. 35 filed for relevant assessment years nor filed any petition for condonation of delay in filing of the appeals explaining reasons. Therefore, the ld. CIT(A) has dismissed appeals filed by the assessee unadmitted in absence of petition for :-5-: 917, 918 & 919/Chny/2023 condonation of delay. No doubt, when the litigant are not persuading/ prosecuting their appeals with utmost honesty, then the appellate authority left with no option, but to decide the appeals on merits. But, in the present case, the CIT(A) although dismissed appeals filed by the assessee unadmitted, but went on to decide the issue involved in appeals on merits, contrary to settled position of law. It is an admitted fact, once the appeals are not admitted then there is no question of deciding those appeals and issues therein on merits. However, the ld. CIT(A) has decided the issues on merits. Further, the appeals of the assessee has been dismissed on technical grounds, without any proper petition from the assessee. Further, the delay in all the three appeals is very small. Therefore, considering the fact that the assessment order passed by the Assessing Officer is ex-parte and also the appeals of the assessee has been dismissed unheard, we are of the considered view that the issues needs to go back to the file of the Assessing Officer. Thus, we set aside the order passed by the CIT(A) for all three assessment years and restore the issues back to the file of the Assessing Officer for fresh adjudication. The Assessing Officer is also directed to reconsider the issue denovo in accordance with law, after