MR. SEENISUBBANAICKER SUNDARARJAPERUMAL,TUTICORIN vs. THE PRINCIPAL COMMISSIONER OF INCOME TAX, MADURAI

This appeal by the assessee is arising out of the revision order of the Principal Commissioner of Income Tax, Madurai-1, Madurai, in C.No.401/5/PCIT/MDU-2/2019-20 dated 19.06.2020. The assessment was framed by the ITO, Ward-4, Tuticorin, for the AY 2015-16,u/s.143(3) of the Income Tax Act, 1961 (hereinafter “the Act”) vide his order dated13.12.2017.

At the outset, it is noticed that this appeal is time barred by 21 days and the assessee has filed petition for condonation of delay along with supportive affidavit of the assessee. The Ld.Counsel for the assessee before us stated that the revision order passed by the PCIT on 19.06.2020, which was received by the assessee on 24.09.2020. The due date for filing of appeal before the ITAT was 23.11.2020, but actually the appeal was filed only on 11.12.2020. Thereby, there was a delay of 21 days. The Ld.Counsel for the assessee before us stated that the delay in filing of the appeal is due to prevalent COVID-19 pandemic. We noted that the Hon’ble Supreme Court in Miscellaneous Application No.665 of 2021 vide order dated 23.03.2020 has given directions that the delay is 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 and admit the appeal.

The Order passed by the Assessing Officer, is neither erroneous nor prejudicial to the interest of the revenue in so far as it relates to the acceptance of the submissions made by your Appellant.

The Ld.Counsel for the assessee stated that the order of the PCIT is ex-parte and the PCIT has not allowed opportunity of being heard to the assessee. The Ld.Counsel for the assessee took us through Para No.4 of the PCIT’s Order that a letter dated 11.02.2020 was sent to PCIT requesting for adjournment and again the matter was fixed for hearing on 10.03.2020 and a request letter was sent vide letter dated 03.03.2020 to appear. The assessee filed Written Submissions on 27.02.2019, which were reproduced in the order of the PCIT. The Ld.Counsel for the assessee stated that the PCIT has noted the dates of hearing i.e. 18.02.2020 & 10.03.2020. According to the Ld.Counsel for the assessee, although the matter was fixed for hearing twice, on both the dates the assessee requested for adjournment and Written Submissions were filed and request was made for personal hearing vide letter dated 27.02.2019.

When these facts were confronted to the ld.Sr.DR, he again narrated the same dates stating that opportunities were given to the assessee, but he did not avail the same on two occasions. Hence, he stated that there is no violation of principles of natural justice. He opposed the plea of the assessee and stated that the matter may be heard on merits.

We have heard the rival contentions and perused the case records on the issue of violation of principles of natural justice. Admittedly, the assessee has made request for personal hearing, which was not granted by the PCIT on two occasions, matter was fixed for hearing but the assessee filed details on one occasion and another, request for adjournment was made. In our view, this is not sufficient opportunities and the PCIT has violated the principles of natural justice. In such circumstances, the Ld.Counsel for the assessee stated that the order of the PCIT should be quashed as there is a violation of principles of natural justice, for this he relied on the decision of the Hon’ble Supreme Court in the case of Sona Builders v. Union of India & Ors. reported in (2001) 251 ITR 0197 (SC).

We have noted in the Hon’ble Supreme Court decision that having regard to the statutory limit within which the appropriate authority has to Act, that was passed and hence, the Hon’ble Supreme Court quashed the order. In our case, the facts are different, no doubt the PCIT has fixed the matter on two occasions and the assessee has responded by filing submissions, but personal hearing was not granted. This is curable defect according to us and hence, one more opportunity to be given to the assessee to represent his case personally. Hence, to grant personal hearing, we set aside the order of the PCIT and direct him to allow one more opportunity to the assessee. Accordingly, the order of the PCIT is set aside and the matter is remanded back to the file of the PCIT for fresh adjudication.

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