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Before: Shri V. Durga Rao & Shri Manoj Kumar Aggarwal
O R D E R
PER V. DURGA RAO, JUDICIAL MEMBER:
Both the appeals filed by the assessee are directed against the orders of the ld. Commissioner of Income Tax (Appeals) 3, Chennai, dated 27.05.2015 relevant to the assessment year 2010-11 and vide order in IT Appeal No. 07/16-17 dated 29.08.2016 for the assessment year 2013-14.
When the appeal in 2010-11 was taken up for hearing, the ld. Counsel for the assessee has submitted that there is delay of 749 days in filing the appeal before the ld.
2 & I.T.A. No.3115/Chny/16 CIT(A). It was further submission that without giving an opportunity to the assessee to substantiate the delay in filing the appeal, the ld. CIT(A) dismissed the appeal of the assessee without condoning the delay and also submitted that the order passed by the ld. CIT(A) may be set aside. It was further submission that the ld. CIT(A) has not passed the appellate order on merits and dismissed the appeal of the assessee only on account of condonation of delay.
On the other hand, the ld. DR dutifully relied on the order passed by the ld. CIT(A).
We have heard both the sides, perused the materials available on record and gone through the orders of authorities below. We find that the ld. CIT(A), without condoning the delay, dismissed the appeal of the assessee. We have also noticed that the ld. CIT(A) has not given proper opportunity to substantiate the case of the assessee before the ld. CIT(A). In view of the request made by the assessee and also by considering the facts and circumstances of the case, we are of the opinion that the ld. CIT(A) should have given an opportunity to the assessee in respect of condonation of delay and decide the appeal on merits. Thus, we are also of the opinion that the order passed by the ld. CIT(A) is liable to be set aside and accordingly, we set aside the appellate order and remit the 3 & I.T.A. No.3115/Chny/16 matter back to the file of the ld. CIT(A) to consider the delay condonation and passed the order on merits in accordance with law after affording meaningful opportunity of being heard to the assessee. We also direct the assessee to appear before the ld. CIT(A) when the appeal is posted for hearing. Thus, the appeal of the assessee is allowed for statistical purposes.
So far as appeal in for the assessment year 2013-14 is concerned, when this appeal was taken for hearing, the ld. Counsel for the assessee has submitted that the ld. CIT(A) confirmed the order of the Assessing Officer by following the judgement of the Special Bench decision of Calcutta Bench in the case of ITO v. Kenaram Saha & Subhash Saha 116 ITD 1without considering merits of the case and submitted that the order passed by the ld. CIT(A) is not a complete order and the same may be remitted back to the ld. CIT(A).
On the other hand, the ld. DR dutifully relied on the order passed by the ld. CIT(A).
7. We have heard both the sides, perused the orders of authorities below. We find that the ld. CIT(A), by following Special Bench decision of Calcutta Bench in the case of ITO v. Kenaram Saha & Subhash Saha
4 & I.T.A. No.3115/Chny/16 (supra) decided the appeal of the assessee. Nowhere in the appellate order, the ld. CIT(A) has discussed the submissions made by the assessee and he has simply followed the Special Bench decision of Calcutta Bench. Further, in the CIT(A)’s order, there is no mention of notice issued to the assessee fixing the appeal for hearing. Under these facts and circumstances, we are of the opinion that the order passed by the ld. CIT(A) has to be set aside and accordingly, we set aside the order of the ld. CIT(A) and remit the matter back to the file of the ld. CIT(A) to adjudicate the appeal afresh in accordance with law after affording adequate opportunity to the assessee.
In the result, both the appeals filed by the assessee are allowed for statistical purposes.
Order pronounced on the 2nd December, 2021 at Chennai.