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Income Tax Appellate Tribunal, ‘B’ BENCH: CHENNAI
Before: SHRI V. DURGA RAO, HON’BLE & SHRI G. MANJUNATHA, HON’BLE
आदेश / O R D E R PER G. MANJUNATHA, AM: This appeal filed by the assessee is directed against the order of the
Commissioner of Income Tax (Appeals)-10, Chennai, dated 26.08.2019 and
pertains to assessment year 2012-13.
At the outset, we find that there is a delay of 143 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
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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 143 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.
2.2 We have heard both the parties and considered the petition filed by
the assessee for condonation of delay and after considering reasons given
for not filing the appeal in time, we are of the considered view that said
reasons comes under reasonable cause as provided under the Act for
condonation of delay and thus, we condoned the delay in filing of the appeal
and admitted the appeal filed by the assessee for adjudication.
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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.15,99,450/-. The assessment has been completed u/s.143(3)
r.w.s.147 of the Act on 23.12.2018 and determined total income of
Rs.54,84,722/- by making addition of Rs.38,85,272/- 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.CIT(A) has disposed off appeal filed by the assessee, but does not
adjudicated legal ground taken by the assessee, on the basis of written
submissions filed by the assessee. Aggrieved by the order of the Ld.CIT(A),
the assessee is in appeal before us.
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.
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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
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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.
Order pronounced on the 30th day of November, 2022, in Chennai.
Sd/- Sd/- (वी. दुगा� राव) (जी. मंजूनाथा) (G. MANJUNATHA) (V. DURGA RAO) लेखा सद�य/ACCOUNTANT MEMBER �याियक सद�य/JUDICIAL MEMBER चे�ई/Chennai, �दनांक/Dated: 30th November, 2022. TLN आदेश क� �ितिलिप अ�ेिषत/Copy to: 1. अपीलाथ�/Appellant 4. आयकर आयु�/CIT 2. ��यथ�/Respondent 5. िवभागीय �ितिनिध/DR 3. आयकर आयु� (अपील)/CIT(A) 6. गाड� फाईल/GF