SHANKAR R,CHENNAI vs. ITO NON CORPORATE CIRCLE-4(1), CHENNAI

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ITA 615/CHNY/2020Status: DisposedITAT Chennai20 July 2022AY 2011-124 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal set aside the orders of the lower authorities (AO and CIT(A)) and remanded the matter back to the AO. The AO was directed to provide an opportunity for hearing to the assessee and decide the issue after considering all facts.

What were the facts?

The assessee's appeal before the ITAT was filed with a delay of 117 days. The delay was attributed to the assessee not being informed of the CIT(A) order, a change of residence, and the COVID-19 lockdown. The Tribunal condoned the delay based on Supreme Court directions.

What were the issues?

The primary issue was the dismissal of the assessee's appeal by the CIT(A) for non-prosecution without considering the merits. The assessee also contended that the AO's assessment suffered from surmise and conjecture.

Which sections of the Income-tax Act were involved?

Section 143(3)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, ‘B’ BENCH, CHENNAI

Before: SHRI MAHAVIR SINGHAND SHRI MANOJ KUMAR AGGARWAL

Hearing: 20.07.2022Pronounced: 20.07.2022

आदेश /O R D E R

PER MAHAVIR SINGH, VICE PRESIDENT:

1.

This appeal by the assessee is arising out of the order of Commissioner of Income Tax (Appeals)-2, Chennai in dated 29.08.2019. The assessment was framed by the ITO, Non-Corporate Ward-2(4), Chennai for the assessment years 2016-17 u/s.143(3) of the Income Tax Act, 1961 (hereinafter the ‘Act’) vide order dated 28.12.2018.

2.

At the outset it is noticed that this appeal is time barred by 117 days and assessee has filed affidavit and petition for condonation of delay. It is noticed that the order of CIT(A) was received by assessee on 10.12.2019 and appeal before Tribunal is to be filed on or before 10.02.20220. But, actually appeal was filed only on 04.06.2020 thereby delay of 117 days. The assessee has filed affidavit stating the following reason:- “2. I state that I was neither informed nor aware of the dismissal of the appeal before the learned Commissioner of Income Tax (Appeals)-2, Chennai, as the appeal order was served at my old residence. However, the appeal order copy was given to in the month of December 2019. I was unable to meet AR till March 2020 & after handing over the order for further appeal COVID lockdown was imposed by MHA and not able to file the appeal immediately. As the AR’s office did not function in that period regularly and filing of this appeal was belatedly before Hon’ble Benches.”

2.1 We noted that the assessee is able to explain the reason from 10.12.2019 to March, 2020 and after that lockdown was imposed in view of the spread of Covid-19 pandemic. The Hon’ble Supreme Court in Miscellaneous Application No.665 of 2021 vide order dated 23.03.2020 has given directions that the delay are to be condoned during this period 15.03.2020 to 14.03.2021 and they have condoned the delay up to 28.02.2022 in Miscellaneous Application No.21 of 2022 vide order dated 10.01.2022. In term of the directions of Hon’ble Supreme Court, we condone the delay in filing of this appeal by assessee and admit the appeal for adjudication.

3.

The ld.counsel for the assessee first of all took us to the Ground No.10(c) as filed in Form No.36, which reads as under:- 10 c) That the CIT(A) erred in dismissing the case in limine for non appearance rather than evaluating the facts of the case is against the principles of natural justice. The AO also failed to call for the confirmation from OLA regarding the nature of receipts to the Appellant under the powers vested under the Act, renders the assessment suffers from surmise and conjecture. 3.1 The ld.counsel for the assessee then took us through the order of CIT(A) and stated that the CIT(A) has simply dismissed the assessee’s appeal for non-prosecution and has not given any finding on merits except para 5, which reads as under:- “5. The materials available on record are statement of facts and grounds of appeal. There is nothing available either by way of explanatory notes or other documents to rebut the AO’s findings on merits. AO’s order, therefore, needs no interference.”

3.2 The ld.counsel stated that even the AO has not understood the issue of aggregation / pooling of call taxi business and he added the entire sale promotion expenses without considering the assessee’s submission. In entirety, he stated that the matter has to go back to the file of AO because the CIT(A)’s order is non-speaking but he requested that the matter can be sent back to the AO for better understanding of facts by the AO.

4.

When these facts were confronted to ld. Senior DR, he could not controvert the fact that the order of CIT(A) is for non- prosecution simpliciter.

5.

After hearing both the sides and going through the facts of the case, we set aside the orders of lower authorities that of the AO and the CIT(A) and accordingly, remand the matter back to the file of the AO. The AO is directed to give opportunity of hearing to the assessee and decide the issue after considering the full facts.

6.

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

Order pronounced in the open court on 20th July, 2022 at Chennai.

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