REGUS BUSINESS CENTRE HYDERABAD PRIVATE LIMITED,HYDERABAD vs. INCOME TAX OFFICER, WARD-3(1), HYDERABAD

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ITA 1396/HYD/2024Status: DisposedITAT Hyderabad12 March 2025AY 2010-11Bench: Shri Vijay Pal Rao (Vice President), Shri Madhusudan Sawdia (Accountant Member)9 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that the CIT(A) erred in dismissing the appeal without properly ascertaining the correct facts regarding the service of the assessment order. Given that the CIT(A) had previously called for remand reports, they should have investigated the service date further before dismissing the appeal on limitation.

What were the facts?

The assessee's appeal was dismissed by the CIT(A) solely on the grounds of limitation, stating the appeal was filed 176 days late. The assessee claimed to have received a certified copy of the assessment order on 27/09/2013 and filed the appeal within the stipulated time from that date. The CIT(A) rejected this, finding the reasons for delay insufficient and the date of service questionable.

What were the issues?

Whether the CIT(A) was justified in dismissing the appeal as time-barred without proper verification of the assessment order's service date, especially after calling for remand reports.

Which sections of the Income-tax Act were involved?

Section 250,Section 144,Section 143(2),Section 142(1),Section 234B,Section 147

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, Hyderabad ‘ DB-A‘ Bench, Hyderabad

Before: Shri Vijay Pal Rao, Vice-Shri Madhusudan Sawdia

Hearing: 11/03/2025

Per Vijay Pal Rao, Vice President

1.

This appeal by the assessee is directed against the order dated, 28/10/2024 of the learned CIT (A)-NFAC Delhi, relating to A.Y.2010-11.

2.

The assessee has raised the following grounds of appeal:

3.

At the time of hearing, the learned AR of the assessee has submitted that, the learned CIT (A) has dismissed the appeal of the assessee in limine, as barred by limitation. The learned AR of the assessee has pointed out that, the assessee did not receive the assessment order passed by the Assessing Officer, till a certified copy was supplied to the assessee on 27/09/2023 and therefore, the assessee filed the appeal before the learned CIT (A) on 18/10/2013 within the period of limitation. The learned AR

Page 3 of 8 has further submitted that, the assessee has also filed an affidavit before the Assessing Officer at the time of taking certified copy. Initially, the hearing of the appeal took place in physical mode and subsequently the case was migrated to the National Faceless Appeal Centre, vide notification dated 25/09/2020. The learned AR has further submitted that, during the physical hearing, the learned CIT (A) called for a remand report in respect of the additional evidence filed by the assessee. The Assessing Officer also submitted 2 remand reports dated 29/06/20915 and 21/02/2020. The assessee also filed the reply to the remand report. However, instead of deciding the appeal on merits, the learned CIT (A) has dismissed the appeal as barred by limitation. The learned AR has also relied upon the decision of the Amritsar Benches of the Tribunal dated 15/05/2024 in case of Radhey Shyam Chowdhary, H. vs. DCIT/ACIT in and submitted that once the learned CIT (A) already called for a remand report, then the dismissal of the appeal on the ground of limitation is in violation of principles of natural justice. Thus, the learned AR has submitted that the impugned order of the learned CIT (A) is not sustainable and liable to be set aside. He has also pleaded that the matter may be remanded to the record of the Assessing Officer for fresh adjudication as the assessment was also passed ex-parte u/s 144 r.w.s. 147 of the I.T. Act, 1961.

4.

On the other hand, the learned DR has submitted that the assessee filed the appeal before the learned CIT (A) after a Page 4 of 8 delay of 176 days. The assessee has not filed any application for condonation of delay before the learned CIT (A), therefore, the learned CIT (A) has dismissed the appeal of the assessee being barred by limitation. He has relied upon the impugned order of the learned CIT (A).

5.

We have considered the rival submission as well as relevant material available on record. In Form-35, the assessee has mentioned the date of communication of the assessment order as 27/09/2013 when the assessee received a certified copy of the assessment order. The assessee filed an affidavit before the Assessing Officer explaining the reasons for taking the certified copy of the assessment order that, the assessee did not receive the assessment order and came to know about the order when the assessee received the notice u/s 221(1) of the I.T. Act, 1961 dated 8/8/2013. The learned CIT (A) despite the fact that the 2 remand reports were called from the Assessing Officer which were also submitted by the Assessing Officer has dismissed the appeal of the assessee as barred by limitation by recording the facts in para 7.1 as under: “7.1 I have perused the appellant’s submissions and Form 35. It is seen that the appellant has not been able to furnish the sufficient and justifiable reasons for inordinate delay of 176 days. Furthermore, the appellant gave wrong date regarding service of assessment order as 27.09.2013 when actually the assessment order was passed much earlier on 19.03.2013. Generally, it does not take more than a week for receiving the assessment order and thereafter the appellant-assessee gets one month time for filing of appeal. Thus,, the appellant should have filed the appeal before 25/04/2013. The appellant did not give enough and justifiable reasons as to why the Page 5 of 8

assessment order was received by it nearly 155 days after passing of the assessment order on 19.03.2013. In the absence of any justifiable reasons, the delay is counted as 176 days. In any case there is a considerable delay in filing of appeal. It is not just and proper at this stage to raise the issue after a gap of more than 176 days. The appellant is desperately trying to avoid its mistake in late filing of the appeal stating that the order u/s.144/147 has been received on 27.09.2013. How come it received 155 days belatedly from the Department at the same address? This reason is not acceptable. It is the responsibility of the appellant to file appeal within the prescribed time as per the statute. Hence the appellant cannot advance the argument saying that the delay in filing the appeal was neither wanted nor deliberate. It is also observed that the appellant was non-cooperative to the department. It did not respond in the assessment proceedings where notices u/s. 142(1) and show cause notice were issued many times.”

6.

Thus, the learned CIT (A) has acknowledged this fact that the assessee has given the date of communication in Form 35 as 27/09/2013 when the Assessing Officer issued certified copy of the assessment order. Once the assessee has stated in Form 35 that he received the assessment order only on 27/09/2013 and filed the appeal within the period of limitation from the said date of communication, then the learned CIT (A) ought to have ascertained the correct facts about the service of the assessment order from the Assessing Officer before the appeal of the assessee was dismissed in limine being barred by limitation. It is pertinent to note when the Assessing Officer was already asked twice for submitting the remand report, then before passing the impugned order, the learned CIT (A) could have very well asked the Assessing Officer to submit the report about the service of the assessment order. Thus, without ascertaining the correct facts

Page 6 of 8 and status of the service, there was no reason to disbelieve the fact stated by the assessee in Form 35 as well as in the affidavit filed by the assessee before the Assessing Officer for taking the certified copy of the assessment order. Accordingly, in the facts and circumstances of the case, we are of the considered view that the learned CIT (A) has passed the impugned order in haste without ascertaining the correct facts regarding the service of the assessment order to the assessee. Hence, the impugned order of the learned CIT (A) is set aside and the matter is remanded to the record of the Assessing Officer for fresh adjudication after giving an appropriate opportunity of hearing to the assessee to produce all the supporting details and documentary evidence.

7.

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

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