What did the Tribunal hold?

The Tribunal condoned the delay in filing the appeal. It held that the CIT(A) is obligated to decide appeals on merits, even if ex-parte, and that the order passed was not a speaking order.

The assessee's appeal before the ITAT was filed with a delay of 42 days due to the assessee suffering from H3N2 flu. The CIT(A)'s order was ex-parte and alleged to be a non-speaking order.

What were the issues?

Whether the CIT(A) passed a speaking order and decided the appeal on merits, or if it was an ex-parte non-speaking order violating principles of natural justice.

M/S Leather India vs ITO | ITAT Chennai 2023

Income Tax Appellate Tribunal, ‘A’ BENCH, CHENNAI

Before: SHRI MAHAVIR SINGHAND SHRI MANOJ KUMAR AGGARWAL

Hearing: 30.08.2023Pronounced: 30.08.2023

आदेश /O R D E R

PER MAHAVIR SINGH, VICE PRESIDENT:

This appeal filed by the assessee is directed against the order of the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC) vide Order No.ITBA/NFAC/S/250/2022- 23/1048961201(1) dated 20.01.2023. The assessment was framed by the Income Tax Officer, Non Corporate Ward-5(2), Chennai for the assessment year 2012-13 u/s. 143(3) of the Income Tax Act, 1961 (hereinafter the ‘Act’) vide order dated 30.01.2015.

2 2. At the outset, it is noticed that this appeal by assessee is time barred by 42 days and assessee has filed condonation petition along with affidavit stating the reason that the order of CIT(A) dated 20.01.2023 was sent to the registered email of the assessee on the very same date on 20.01.2023. However, the appeal was filed before Tribunal only on 02.05.2023 and thereby there is a delay of 42 days. The assessee stated that the appeal was finalized on 21.03.2023 but he could not be contacted since he was affected with H3N2 flu and soon after recovery, the appeal was filed with a delay of 42 days. When this was pointed out to ld. Senior DR, she could not controvert. Going by the reasons stated, we condone the delay and admit the appeal.

At the outset, the ld.counsel for the assessee stated that the order of CIT(A) is ex-parte and it is in violation of principles of natural justice. The ld.counsel for the assessee took us through the order of CIT(A) and stated that the CIT(A) has decided the appeal ex-parte without adjudicating the issue by a non-speaking order. When this was brought to the notice of ld. Senior DR, she stated that various opportunities were given to the assessee to represent its case but assessee has not availed the opportunity. The ld.Senior DR further stated that ample opportunities are given then the 3 CIT(A) has no option to decide the appeal ex-parte. On further query, whether the matter is decided on merits by ld.CIT(A), the ld.CIT-DR could not answer and stated that the order is non- speaking.

After hearing rival contentions and going through the facts of the case, we are of the view that this being a statutory appeal the CIT(A) is duty bound to decide the appeal on merits even though, he decides ex-parte. As the CIT(A) has not passed a speaking order, we set aside the order of CIT(A) and remit the matter back to his file for fresh adjudication. Needless to say that the CIT(A) will allow reasonable opportunity of being heard to the assessee and assessee is also directed to represent its case as and when notice is issued, otherwise adverse view can be taken against the assessee.

In the result, the appeal filed by the assessee is allowed for statistical purposes.

Order pronounced in the open court on 30th August, 2023 at Chennai.

M/S LEATHER INDIA,CHENNAI vs. ITO, NON CORPORATE WARD-5(2), CHENNAI

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