YOGI REALTY PRIVATE LIMITED,MUMBAI vs. CIRCLE 14(1)(2),, AAYKAR BHAWAN

In the instant case, though the Assessee had filed 1st appeal challenging the assessment order dated 30.10.2019 under Section 143 (3) r.w.s. 147 of the Act whereby, the addition of Rs. 49,50,000/- has been made by the AO being unexplained cash credit under Section 68 of the Act, however, with a delay of 78 days in filing the same and despite affording various opportunities of being heard, eventually made no compliance and therefore, the ld. Commissioner not only dismissed the appeal of the Assessee on the point of limitation but also dismissed the same on merit vide impugned order.

Thus, the Assessee being aggrieved has preferred instant appeal.

As observed above, the ld. Commissioner not only decided the appeal of the Assessee on the point of limitation declining the request of the Assessee for condonation of delay but also dismissed the appeal of the Assessee on merits. Therefore, question emerge “as to whether the Ld. Commissioner while refusing to condone the delay has rightly proceeded with the case on merits”.

This Court observe that identical issue has also been dealt with by the Hon’ble Gauhati High Court in the case of Williamson Financial Services Ltd. vs. CIT, (2004) 140 taxman.com 246 (Gauhati), wherein the Hon’ble High Court has held as under:

This Court further observe that the Hon'ble High Court of Madras in the case of Centre for Individual & Corporate Action (CICA) vs. Assistant Commissioner of Income Tax, Business Circle XII, Chennai (2016) 66 taxmann.com 346 (Madras) also dealt with the identical issue and held that once the appeal itself is not entertained on the question of delay, then there is no question of deciding the issue raised in the appeal on merits, by observing and holding as under:

This Court further observe that Hon'ble High Court of Madras in another case l.e. All Angels Educational Society vs. Chief Commissioner of Income Tax, Chennai-III (2016) 72 taxmann.com 251 (Madras) also dealt with the identical issue and held that having rejected the application on the ground of limitation, the question of examining the merits of the matter would not arise, as it is a superseded exercise.

From the aforesaid judgments, it is clear that once the Court declined to condone the delay and/or dismissed the appeal of the Assessee in limine for want of limitation, then the Court is not supposed to touch upon the merits of the case and/or is not supposed to decide the case on merits.

Coming to the instant case, admittedly the Ld. Commissioner though declined to condone the delay and/or dismissed the appeal of the Assessee for want of limitation but still proceeded with the merits of the case and ultimately dismissed the appeal of the Assessee on merits as well; therefore, the impugned order is liable to be set aside. However, considering the peculiar facts and circumstances, as admittedly, during the appellant proceedings before the Id. Commissioner, the Assessee neither responded to the notices nor filed any written submission and documents in spite of affording various opportunities, as mentioned in para 2.1 of the impugned order and therefore, in the constrained circumstances, the ld. Commissioner affirmed the aforesaid addition. If we consider the conduct of the Assessee then the Assessee does not deserve any leniency, however, it is a fact that the issue involved also remains to be adjudicated in its right perspective and proper manner, specifically in the absence of relevant submissions and documents, therefore, for just and proper decision of the case and substantial justice, we are inclined to remand the instant case to the file of the ld. Commissioner for decision afresh, suffice it to say, by affording reasonable opportunity of being heard to the Assessee and subject to deposit of Rs.11,000/- in the Revenue Department under 'other heads' within 30 days of this order.

Thus, the case is accordingly remanded to the file of the Id. Commissioner for decision afresh, in the above terms.

In the result, Assessee’s appeal is allowed for statistical purposes.