MS. ASHOK KUMAR INDIRA DUGAR,CHENNAI vs. ITO, NCW - 9 (2), CHENNAI

At the outset, we find that there is a delay of 164 days in filing of the appeal before the Tribunal, for which, a petition along with affidavit explaining reasons for delay in filing of the appeal, has been filed. The Ld.Counsel for the assessee referring to petition filed by the assessee submitted that the order issued from the Commissioner of Income Tax, was got mixed up with other papers and was found missing. It was only during the last week of February, 2020 when the assessee informed about penalty proceedings, the assessee realized that the appeal needs to be filed before the Tribunal. Thereafter, the assessee could able to prepare appeal papers and filed, which caused delay of 164 days and said delay is neither willful nor to derive any undue benefit. Therefore, the same may be condoned in the interest of natural justice.

2.1 The Ld.DR, on the other hand, submitted that reasons given by the assessee for condonation of delay does not come under reasonable cause and thus, appeal filed by the assessee should not be admitted.

The brief facts of the case are that the assessee is an individual and filed his return of income for the AY 2012-13 on 06.08.2012 admitting total income of Rs.12,32,550/-. The assessment has been completed u/s.143(3) r.w.s.147 of the Act on 22.12.2018 and determined total income of Rs.36,92,965/- by making addition of Rs.24,60,415/- u/s.68 of the Act, as unexplained credit towards consideration received for sale of certain shares of penny stocks. The assessee carried the matter in appeal before the First Appellate Authority, and before the Ld.CIT(A), the assessee challenged re- opening of assessment vide two grounds of appeal filed before the Ld.CIT(A). The assessee had also filed written submissions on the issue before the Ld.CIT(A). However, it is not appeared for personal hearing.

The Ld.AR for the assessee submitted that although, the assessee has taken a specific ground challenging validity of re-opening of assessment, but the Ld.CIT(A) does not adjudicated the legal issue and thus, the appeal may be set aside to the file of the Ld.CIT(A) for deciding the issue of legality of re-assessment proceedings.

The Ld.DR, on the other hand, supporting the order of the Ld.CIT(A), fairly agreed that the issue may be set aside to the file of the Ld.CIT(A) for adjudication legal issue.

We have heard both the parties, perused the materials available on record and gone through orders of the authorities below. Admittedly, the assessee has taken Ground No.2 challenging legality of re-opening of assessment proceedings, but the Ld.CIT(A) has failed to adjudicate specific ground taken by the assessee challenging validity of re-opening of assessment. However, decided the issue involved in appeal on merits on the basis of written submissions filed by the assessee when the assessee does not appear in person despite various notices was given during the course of appellate proceedings. In our considered view, when there is a specific ground in the memorandum of appeal filed by the assessee before the First Appellate Authority challenging validity of re-opening of assessment, then it is the duty of the appellate authority to decide the said ground whether or not the assessee appeared before the authority and filed necessary details. In this case, the assessee claims that it has raised a specific ground by way of Ground No.2 of grounds of appeal filed along with Form No.35 and also filed written submissions on said Ground No.2. We find that the assessee has taken a specific ground by way of Ground No.2 and challenged validity of re-opening of assessment. However, the Ld.CIT(A) failed to adjudicate said ground. Therefore, we are of the considered view that the issue needs to go back to the file of the Ld.CIT(A) for adjudicating legal issue raised by the assessee on validity of re-opening of assessment and thus, we set aside the order of the Ld.CIT(A) and restore the issue to the file of the Ld.CIT(A) and direct the Ld.CIT(A) to adjudicate legal ground taken by the assessee challenging re-opening of assessment.

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