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Income Tax Appellate Tribunal, ‘C’ 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)-6, Chennai, dated 10.09.2019, and pertains to assessment year 2013-14.
The assessee has raised the following grounds of appeal:
The order of the learned Commissioner of Income (Appeals)-6, is wrong, illegal and is opposed to law.
2. The learned Commissioner (Appeals) erred in dismissing the appellants appeal as time barred by observing that the appellant had suppressed the information that there was delay of 3 days in filing the appeal.
M/s.Global Infoserve Ltd. :: 2 ::
3. The learned CIT(A) ought to have seen that the appellant had not suppressed any information regarding the date of receipt of order and the date of filing of appeal and the same has been properly declared by the appellant while filing the statutory form 35 for filing appeal before the learned CIT(A).
4. The learned CIT(A) ought to have seen that the assessee was unaware that there was 3 delays delay in filing the appeal and no defect notice ever was issue to the appellant for explanation of delay. Further the delay is neither willful nor wanton. 5. The learned CIT(A) erred in not putting the appellant to notice of delay in filing and was prejudiced by his opinion that the appellant· had suppressed that the appeal has been filed with a delay. 6. The learned CIT(A) erred in sustaining the assessment order which was done on the best of judgment basis. For these and other grounds that may be rendered at the time of hearing it is most humbly prayed that the Hon'ble Tribunal may be pleased to allow the appellants appeal and thus render justice.
At the outset, we find that there is a delay of 375 days in filing of the appeal before the Tribunal. The assessee has filed petition for condonation of delay along with Affidavit explaining the reasons for delay in filing of the appeal. The Ld.Counsel for the assessee referring to Affidavit filed by the assessee submitted that the assessee had received appellate order on 24.09.2019 and in normal course, the appeal should have been filed on or before 22.11.2019. However, the assessee had filed appeal only on 10.11.2015 with a delay of 375 days. The reason for the delay in filing of the appeal is neither intentional nor to derive any undue benefit, but due to circumstances beyond control of the assessee, because, the Accountant, who was handling the tax matters of the company resigned and replaced by a new Accountant who came in possession of the appeal papers only
M/s.Global Infoserve Ltd. during the 1st week of February, 2020. The new Accountant thereafter took efforts to contact Counsel and get the appeal papers ready in the 1st week of March, 2020, but however, due to sudden outbreak of Covid-19 pandemic, the assessee was unable to file its appeal and after lifting lock down in the month of November, 2020, the assessee could able to file appeal on 18.11.2020, which caused delay of 375 days. Therefore, considering the reasons and also in the interest of natural justice, the delay may be condoned.
3.1 The Ld.DR, on the other hand, opposing the petition filed by the assessee for condonation of delay submitted that the reasons given by the assessee does not come under reasonable and bona fide cause as provided under the Act, for condonation of delay and thus, the appeal filed by the assessee may be dismissed as not maintainable.
3.2 We have heard both the parties and considered the petition filed by the assessee for delay in filing of the appeal and we find that the reasons given by the assessee seems to be bona fide and reasonable and thus, taking into account the totality of the facts and circumstances of the case and also in the interest of natural justice, we condone the delay in filing of the appeal with a direction to the assessee to pay a sum of Rs.5,000/- as cost to the State Legal Aid Authority, Hon’ble Madras High Court, and produce necessary proof
M/s.Global Infoserve Ltd. :: 4 :: of payment of cost to the said authority. Accordingly, the appeal filed by the assessee is condoned in terms of above and appeal filed by the assessee is admitted for hearing.
The brief facts of the case are that the assessee company filed its return of income for the AY 2013-14 on 29.09.2013 declaring current year loss of Rs.43,68,508/-. The assessment has been completed u/s.144 of the Act on 16.03.2016 and determined total income of Rs.1,02,41,828/- by making various additions. The assessee carried the matter in appeal before the First Appellate Authority and appeal filed by the assessee was time barred by three days. The Ld.CIT(A) dismissed the appeal filed by the assessee on technical grounds without condoning the delay. Aggrieved by the order of the Ld.CIT(A), the assessee is in appeal before us.
We have heard both the parties, perused the materials available on record and gone through orders of the authorities below.
Admittedly, the assessment order passed by the AO u/s.144 of the Act, is exparte without giving proper opportunity of hearing to the assessee. Although, the assessee did not appear before the AO when the case was called for hearing, the Ld.CIT(A) dismissed the appeal filed by the assessee on technical grounds without condoning the delay. Therefore, considering the facts that the assessment order is M/s.Global Infoserve Ltd. :: 5 :: exparte and also the assessee did not get an opportunity before the First Appellate Authority to represent its case, we are of the considered view that the appeal needs to be set aside and hence, we set aside the order of the Ld.CIT(A) and restore the issue back to the file of the AO and direct the AO to re-consider the issue after providing opportunity to the assessee in accordance with law.
In the result, appeal filed by the assessee is allowed for statistical purposes.