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Income Tax Appellate Tribunal, ‘SMC’ BENCH VARANASI
IN THE INCOME TAX APPELLATE TRIBUNAL ‘SMC’ BENCH VARANASI
BEFORE SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER & SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA No. 32/VNS/2022 (A.Y: 2018-19) DezireLife SciencesPvtLtd Vs. Income Tax Officer, Near Dr.Mangala Singh, Ward 3(3), Mau Maunath Bhanjan, Uttar Pradesh Sahadatpura, Mau Uttar Pradesh- 275101. PAN/GIR No. : AAECD1327L Appellant .. Respondent Appellant by : Shri. Sanjay Dubey.AR Respondent by : Shri .A.K. Singh.DR Date of Hearing 10.04.2023 Date of Pronouncement 11.04.2023 आदेश / O R D E R PER PAVAN KUMAR GADALE JM: The assessee has filed the appeal against the order of the National Faceless Appeal Centre (NFAC), Delhi/CIT(A) passed u/s. 250 of the Income Tax Act, 1961.The assessee has raised the following grounds of appeal:
“1. That on the facts and circumstances of the case the Ld. CIT(A) was wrong in dismissing the appeal on account of late
ITA No. 32/Vns/2022 Dezire Life Sciences Pvt. Ltd.. - 2 - filing of appeal by the assessee without giving opportunity to explain the delay. 2. That on facts and circumstances of the case the Ld. CIT(A) was wrong in deciding the merit of the case without considering the response filed by the appellant on 21.12.2021 against notice dated 10.12.2021 u/s 250 of the Act.
That the Ld. CIT(A) was wrong to dismiss the appeal in limine and at the same time deciding the appeal on merits proving that delay in filing the appeal was condoned.
That the tax authorities erred in making the addition by making disallowance the claim Rs.4,21,660/- is not legally tenable and arbitrary.
That the tax authorities erred in law and on facts in creating a demand of Rs.1,39,630/-
That in relation to the grounds of appeal as mentioned above the appellant begs to refer and rely upon the averments that have been made in the statement of facts accompanying the memo of appeal.”
ITA No. 32/Vns/2022 Dezire Life Sciences Pvt. Ltd.. - 3 - 2. The brief facts of the case are that, the assessee company is engaged in the business and filed the return of income for the Assessment Year 2018-19 on 06.03.2019 disclosing a total income of Rs.31,418/-. Subsequently, the return of income was processed u/s.143(1) of the Act with the disallowance of UPVAT/GST liability of Rs 4,21,660/- U/sec43B of the Act determining the total income of Rs.4,53,080/- Aggrieved by the order, the assessee has filed the appeal with the CIT(A). 3. In the appellate proceedings, the CIT(A) has observed that there is a delay of 12 days in filing of the appeal and the assessee was served with the notices of hearing referred in Para 2 of the CIT(A)’s order and the assessee has complied with the information on the grounds of appeal but the assessee has not explained the sufficient cause for delay in filing the appeal nor the condonation petition was filed by the assesee. Finally, the CIT(A) has confirmed the disallowance u/s. 43B of the Act and dismissed the assesee appeal. Aggrieved by the CIT(A) order, the assessee has filed an appeal with the Honble Tribunal.
ITA No. 32/Vns/2022 Dezire Life Sciences Pvt. Ltd.. - 4 - 4. At the time of hearing, the Ld.AR submitted that the CIT(A) has erred in dismissing the assessee’s appeal and overlooked the facts that there is no delay in filing the appeal with the appellate authority. Further the CIT(A) has decided the appeal by sustaining the disallowance u/s.43B of the Act and dismissed the appeal in limine. Whereas, the assessee has considered the date of order u/s. 143(1) of the Act i.e 2-07-2019 and filed the appeal.TheLd.AR submitted that the assesee has good case on merits and prayed for an opportunity to substantiate with the evidences before the Lower authorities. Contra, the Ld. DR supported the order of the CIT(A).
We have heard the rival submissions and perused the material on record. The Ld.AR of the assessee submitted that the CIT(A) has erred in dismissing the appeal in limine observing that the assessee has not filed the appeal within time and the delay was not explained and also no condonation petition was filed and at the same time decided the assessee appeal on merits. Further the order u/s. 143(1) of the Act was passed on 02.07.2019 and as per the observations of the CIT(A) at Para 1 of the order, the assessee has
ITA No. 32/Vns/2022 Dezire Life Sciences Pvt. Ltd.. - 5 - filed the appeal on 14.8.2019 and there is a delay of 12 days in filing the appeal. The Ld.AR submitted that the actual date of order was mentioned as a date of receipt of service in the appeal memo Form.no. 35 and these facts have been wrongly mentioned. We find that the CIT(A) has provided adequate opportunity of hearing and the assessee has complied with the information. Since the assessee has not explained the delay in filing the appeal nor condonation petition was filed and the appeal was dismissed.
The Ld.AR has filed the written submissions before the Honble Tribunal explaining that the assessee has filed the appeal within the due date and the evidences on merits were filed. We find that the assessee has raised the grounds of appeal, challenging the addition by the AO. Further the fact remains that the assessee has mentioned that date of order as receipt of the order in the Form.no.35 and the actual date of receipt needs to be verified. We considering the principles of natural justice, shall provide one more opportunity of hearing to the assessee to substantiate the case before the CIT(A) on merits along with the condonation petition for the delay if any. Accordingly, we set aside the order
ITA No. 32/Vns/2022 Dezire Life Sciences Pvt. Ltd.. - 6 - of the CIT(A) and remit the disputed issues to the file of CIT(A) to adjudicate afresh and the assessee should file the condonation petition explaining the reasonable cause for the delay and should cooperate in submitting the information for early disposal of the appeal and we allow the grounds of appeal of the assessee for statistical purposes.
In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in the open court on 11.04.2023.
Sd/- Sd/- (RAMIT KOCHAR) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated 11.04.2023 Aks/- Copy of the Order forwarded to : The Appellant 1. The Respondent. 2. The CIT(A) 3. Concerned CIT 4. DR, ITAT, Mumbai 5. 6. Guard file.