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Income Tax Appellate Tribunal, ‘D’ BENCH, CHENNAI
Before: SHRI MAHAVIR SINGHAND SHRI GIRISH AGRAWAL
The first four appeals by the assessee in to 1279/Chny/2018 are arising out of different orders of Commissioner of Income Tax (Appeals)-18, Chennai in ITA No.821/15-16 & 822,823&824/15-16 vide orders of even date 28.12.2017. The assessments were framed by the ACIT, Central Circle II(3), Chennai for the assessment years 2009-10 to 2012-13 u/s.153C r.w.s.143(3) of the Income Tax Act, 1961 (hereinafter the ‘Act’) vide orders of even date 27.03.2014.
The second set of three appeals in & 1392/Chny/2017 & 1275/Chny/2018 are arising out of orders of the Commissioner of Income Tax (Appeals)-18, Chennai in ITA No.351/15-16 & 79/17-18 vide orders dated 24.03.2017 & 29.12.2017. The assessments were framed by the ACIT, Central Circle II(3), Chennai for the assessment year 2010-11 u/s.153C r.w.s.143(3) of the Act vide order dated 27.03.2014 (the impugned assessment order under challenge) and for the same assessment order, the penalty under dispute was levied u/s.271(1)(c) of the Act vide order dated 28.09.2017.
4 to 1279/Chny/2018, 1391, 1392, 1369 & 1370/Chny/2017 3. The third set of cross appeals are arising out of the orders of the Commissioner of Income Tax (Appeals)-18, Chennai in ITA No.329/15-16 vide order dated 28.03.2017. The assessment was framed by the ACIT, Central Circle II(3), Chennai for the assessment year 2010-11 u/s.153A r.w.s.144 of the Act vide order dated 28.03.2014
4. At the outset the ld.counsel for the assessee stated that preliminary ground in all these nine appeals is that no effective and adequate opportunity of being heard was granted by the CIT(A). The ld.counsel stated that the peculiar fact in the above cases is that the entire affairs of the assessee is managed and maintained by the Managing Director of the Deen Dayal Medical & Educational Trust i.e., Shri T.D. Naidu and the role of the assessees in the transaction is almost nil. It was contended that the documents and details were impounded by the Department and also by other Government agencies like Enforcement Directorate, CBI, etc. Further, the ld.counsel explained that Shri T.D. Naidu was under judicial custody during the hearings before CIT(A) and this added to the non-appearance and non-production of documents and explanation. The ld.counsel explained that on the similar grounds 5 to 1279/Chny/2018, 1391, 1392, 1369 & 1370/Chny/2017 raised by the Department that when the order of AO was upheld in similar issue in the case of Shri T.D. Naidu, the appeal was remitted back to the file of the AO by this Tribunal in ITA No.1411/Chny/2017, order dated 22.03.2018 by observing in para 3 & 4 as under:- 3. The AR submitted that the assessee was in judicial custody as he could not get his bail during the appeal proceedings and was still in judicial custody till the appeal is filed before this tribunal. The CIT(A) dismissed the appeal without effective representation when the assessee was in judicial custody which was known to him. Getting an unfettered bail is the only way to effectively represent himself with free state of mind and in this case it was absent, while the CIT(A) dismissed the appeal without effective representation. Per contra, the DR supported the order of the CIT(A).
We heard the rival submissions. On the facts represented above, we deem it fit to remit the issues back to the Assessing Officer for a fresh examination. The assessee shall place all the materials in its support before the AO and comply to the AO’s requirements as per law. The A O is free to conduct appropriate enquiry as deemed fit, but he shall furnish adequate opportunity to the assessee on the material etc to be used against it and decide the matter in accordance with law .
The ld.counsel stated that exactly on same directions, matter can be remitted back to the file of the AO.
When this was pointed out to ld.CIT-DR, he only requested that matter can be restored back to the file of the CIT(A). But 6 to 1279/Chny/2018, 1391, 1392, 1369 & 1370/Chny/2017 ld.counsel for the assessee stated that the matter may be restored back to the file of the AO because even before AO, there was no proper representation or documents were not filed or not obtained from Government agencies. On this, the ld.CIT-DR agreed that matter can be restored back to the file of the AO.
While hearing these appeals, it is noticed that five appeals of assessees in and 1276, 1277, 1278 & 1279/Chny/2018 are delayed by 24 days and assessees explained the reason that the delay is entirely attributable to the arrest of the person who was managing affairs of the entire income tax proceedings i.e., Shri T.D.Naidu. To this, the ld.DR has not seriously objected.
After hearing rival contentions and going through the entirety of facts, since in the appeal of Shri T.D.Naidu in order dated 22.03.2018, the Tribunal has already remanded back the matter to the file of the AO, we are also inclined to remit the matter back to the file of the AO in all these appeals after condoning the delay in the above mentioned five appeals. Hence, we set aside the orders of the lower authorities in 7 to 1279/Chny/2018, 1391, 1392, 1369 & 1370/Chny/2017 all these appeals and remand the matter back to the file of the AO for fresh adjudication after giving reasonable opportunity of being heard to the assessee.
In the result, the appeals filed by the assessees in & 1392/Chny/2017 and ITA Nos. 1275 to 1279/Chny/2018 as well as by the Revenue in ITA Nos.1369 & 1370/Chny/2018 are allowed for statistical purposes.
Order pronounced in the court on 28th February, 2022 at Chennai.