KOTHA VENKATA SURESH,PRAKASAM vs. ITO, WARD-2, ONGOLE

The assessee has raised the following grounds of appeal:

The brief facts of the case are that the assessee is an individual who had filed an appeal before the Ld. CIT(A) against the penalty order passed by the Learned Assessing Officer (“Ld. AO”) under section 270A of the Income-tax Act, 1961 (“the Act”) dated 30.01.2022. However, there was a delay of 81 days in filing the appeal before the Ld. CIT(A). The Ld. CIT(A) declined to condone the delay and dismissed the appeal in limine without adjudicating the issues raised by the assessee on merits.

Aggrieved by the order of the Ld. CIT(A), the assessee is in appeal before the Tribunal. The Learned Authorized Representative (“Ld.AR”) submitted that the appeal before the Ld. CIT(A) was required to be filed within 30 days from the date of service of the penalty order. It was submitted that the date of the penalty order is 30.01.2022. However, the appeal was actually filed on 21.05.2022. The Ld. AR submitted that the delay so computed falls entirely within the period covered by the directions issued by the Hon’ble Supreme Court in Suo Motu Writ Petition (Civil) No. 3 of 2020 relating to extension of limitation owing to the COVID-19 pandemic. It was submitted that the Hon’ble Supreme Court excluded the period from 15.03.2020 to 28.02.2022 for the purpose of limitation and further granted a period of 90 days commencing from 01.03.2022 for filing proceedings where the limitation would have expired during the excluded period. Accordingly, the appeal filed by the assessee on 21.05.2022 was well within the extended period granted by the Hon’ble Supreme Court. Therefore, it was submitted that the delay in filing the appeal before the Ld. CIT(A) ought to have been condoned and the appeal should have been adjudicated on merits.

Per contra, the Learned Departmental Representative (“Ld. DR”) relied upon the order of the Ld. CIT(A) and supported the action of the first appellate authority in dismissing the appeal on the ground of limitation.

We have considered the rival submissions and perused the material available on record including the case law relied upon. The short issue arising for our consideration is whether the Ld. CIT(A) was justified in refusing to condone the delay of 81 days in filing the appeal before him. It is an undisputed fact that the penalty order was passed on 30.01.2022 and the appeal before the Ld. CIT(A) was filed on 21.05.2022. The Ld. CIT(A) treated the appeal as delayed by 81 days and dismissed the same without adjudicating the issues raised by the assessee on merits. We find merit in the contention of the Ld. AR. The Hon’ble Supreme Court in Suo Motu Writ Petition (Civil) No. 3 of 2020, while taking cognizance of the extraordinary circumstances arising out of the COVID- 19 pandemic, directed exclusion of the period from 15.03.2020 to 28.02.2022 for the purpose of computing limitation. The Hon’ble Supreme Court further directed that in cases where the period of limitation would have expired during the aforesaid excluded period, all persons shall have a limitation period of 90 days from 01.03.2022. If the limitation period of 90 days is calculated from 01.03.2022, the limitation period available to the assessee was upto 29.05.2022. In the present case, the assessee has filed the present appeal on 21.05.2022. Accordingly, the period available to the assessee for filing the appeal before the Ld. CIT(A) admittedly fell within the period covered by the directions of the Hon’ble Supreme Court. Thus, the entire period relevant for computing limitation in the

We further find that since the Ld. CIT(A) dismissed the appeal solely on the ground of limitation, the issues raised by the assessee have not been examined and adjudicated on merits. Therefore, the assessee did not get an effective opportunity of prosecuting the appeal before the first appellate authority on merits. In these facts and circumstances, without adjudicating the other grounds raised by the assessee before us, we deem it appropriate to restore the entire matter to the file of the Ld. CIT(A) with a direction to adjudicate the appeal afresh on merits in accordance with law after providing adequate opportunity of being heard to the assessee. The assessee is also directed to cooperate in the appellate proceedings and shall not seek unnecessary adjournments. The assessee shall place all evidences, explanations and submissions in support of the grounds raised before the Ld. CIT(A) so as to facilitate expeditious disposal of the appeal. Accordingly, the impugned order of the Ld. CIT(A) is set aside and the matter is restored to his file for fresh adjudication on merits.

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