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

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.

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.”

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.”

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.

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.

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