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Income Tax Appellate Tribunal, PUNE BENCH “A”, PUNE
Before: SHRI S. S. GODARA & SHRI DR. DIPAK P. RIPOTE
ORDER
PER DR. DIPAK P. RIPOTE, AM :
This appeal has been filed against the order of Commissioner of Income Tax (Appeals)- 1, Pune dated 20.11.2018.
The grounds of appeal
are as under :-
1. On the facts and in the circumstances of the case, the Ld. CIT(A)-1, Pune erred in dismissing the appeal of the assessee appellant in liminie against the assessment order passed making addition of Rs.
50,00,609/- by the Assessing Officer on account of disallowance of depreciation thereby rejecting the appellant’s prayer for condonation of delay in filing the appeal for days for cogent and sufficient reasons without appreciating the facts that there was sufficient merit in the case of the appellant against the quantum addition made as above by the Assessing Officer and once the appeal had been decided on merit, the appellant would have succeeded in the appeal. The order therefore passed by the Ld. CIT(A)-1, Pune dismissing the appeal without deciding it on merit being arbitrary, illegal and bad-in-law be set aside / quashed.
2. On the facts and in the circumstances of the case, the Ld. CIT(A)-1, Pune erred in dismissing the appeal of the assessee appellant in liminie against the assessment order passed making addition of Rs. 50,00,609/- by the Assessing Officer on account of disallowance of depreciation without considering the claim of the appellant on merit and further without adjudicating the substantive grounds of appeal
as raised before the Ld. CIT(A) vide Ground Nos. 1, 2 and 3 though in para 4 and 5 of the Appellate Order he had only discussed and decided regarding the issue of condonation of delay of 15 days in filing the appeal by the appellant before him and in fact, the substantive grounds of appeal had not been adjudicated by him either in positive or negative manner thereby discussing the same in the Appellate Order giving his findings in this regard. The appellate order therefore so passed dismissing the appeal of the appellant without condoning the delay in filing the appeal by the Ld. CIT(A) against the principle of natural justice being arbitrary, illegal and bad-in-law be set aside / quashed.
3. On the facts and in the circumstances of the case, the Ld. CIT(A)-1, Pune erred in dismissing the appeal of the assessee appellant in liminie against the assessment order passed making addition of Rs. 50,00,609/- by the Assessing Officer on account of disallowance of depreciation when the appellant Company was eligible to such depreciation being the asset installed in a running business and used for the business of the appellant without appreciating the facts that the Ld. Assessing Officer had arbitrarily held that the asset on which depreciation was claimed had not been put to use and therefore the appellant was not eligible to depreciation claimed in the accounts and return of income filed, despite the fact that the appellant company was eligible to such depreciation for which decisions of the Hon’ble Bombay High Court in the case of DineshkumarGulabchand Agarwal Vs. CIT (2004) 267 ITR 768 (Bom) and of Hon’ble Delhi High Court in the case of Commissioner of Income Tax Vs. Integrated Technologies Ltd. in dated 16th December 2011 (Del) had been Ld. CIT(A) who however had not considered the appellant’s submission to adjudicate the appeal on merit and merely for delay in filing the appeal for 15 days when there were sufficient reasons for filing the appeal late had dismissed the appeal. The addition therefore so made by the Ld. Assessing Officer of Rs. 50,00,609/- on account of disallowance of depreciation be deleted. 4. The appellant craves leave to add, alter, amend, withdraw or substitute any ground or grounds of appeal or to add any new ground or grounds of appeal on or before the hearing.”
3. None appeared for assessee, therefore, we decide this case based on the records and submission of ld. DR.
4. The only issue involved in this case is CIT(A) has not condoned delay in filing the appeal which was 15 days. The CIT(A) has held that there was no sufficient reason for delay in filing the appeal. Therefore, the CIT(A) had dismissed the appeal in limine.
5. It is an admitted fact that there was a delay of 15 days. However, we are of the opinion that the substantive justice is more important than the procedures. Therefore, we set aside this appeal to the Commissioner of Income Tax (Appeals) to be decided afresh on merits after giving opportunity to the assessee. Accordingly, grounds of appeal of the assessee are allowed for statistical purposes.