M/S. SPICE MOBILITY LTD.,NOIDA vs. ACIT (TDS), NOIDA

At the outset, ld. counsel for the assessee pointed out that appeal for the Assessment Year 2014-15 is barred by limitation. He submitted that the Ld. CIT (A) had passed a consolidated order for the Assessment Years 2013-14 and 2014-15 and appeals were dismissed ex parte in a very cryptic manner and without deciding the appeal on merits. The said appellate order was communicated to the assessee on 26.09.2016 and thereafter, assessee by mistake has filed common memorandum of appeal within statutory time on 21.11.2016 in respect of both the Assessment Years. Even the grounds of appeal annexed to the memorandum of appeal were also filed in a consolidated manner. Between 21.11.2016 and 21.06.2019 no communication was received from the Registry of the Tribunal about any such defect. It was only on the receipt of notice of first listing of the appeals and through the papers provided by the assessee to its legal counsel; it was then informed that the accompanying appeal has not been filed in conformity with the ITAT Rules, 1962. Accordingly, the assessee had to file separate memo of appeal for the Assessment Year 2014-15 and for this reason there was a delay. Thus, there is a sufficient and reasonable cause; firstly, for the reason that no professional advice was given to the assessee during the filing of the appeal; secondly, no defect was pointed out by the Registry at the time of filing of 3 I.T.As. No.5945/DEL/2016 & 8186/DEL/2019 common appeal for the two assessment years; and lastly, there was no mala fide intention on the part of the assessee.

Ld. DR admitted the above facts as pointed out by the ld. counsel.

After considering the facts and circumstances of the case that assessee did file the appeal within statutory time albeit had filed consolidated appeals for the Assessment Years 2013-14 and 2014-15 as the order of the ld. CIT(A) was common/ consolidated order. Thus, there was reasonable cause as pointed out by the Ld. Counsel for delay in filing of appeal for the Assessment Years 2014-15, hence the delay is hereby condoned.

On the merits, the ld. counsel submitted that Ld. CIT (A) has dismissed the appeal ex parte on the very first date of hearing. On the date fixed for hearing, assessee had filed a letter stating before Ld. CIT (A) that it needs certain time for preparing the submission. However, the Ld. CIT (A) rejected the prayer for adjournment and dismissed the appeal ex parte without giving any proper opportunity of being heard to the assessee. He further pointed out that otherwise the assessee’s case is squarely covered by the decision of the Tribunal in assessee’s own case for the Assessment Year 2011-12 on the same issues involved and also drew our attention to the order of the Tribunal.

On the other hand, ld. DR submitted that since the order in the first appeal has been passed ex parte, therefore, matter can be restored back to the file of the Ld. CIT (A).

After considering the impugned order, we find that Ld. CIT (A) in paragraph 3 of his order has mentioned that notice for hearing was served upon the assessee and in response to same, the assessee had filed a letter on 10.05.2016 stating that it was in the process of preparing the submissions, and therefore, the case should be adjourned. However, he observed that there was no direction issued to the appellant to furnish any new or additional information, and therefore, he will not permit to make any further submission. Based on memo of appeal, he is proceeded to decide the appeal. However instead of deciding the issues raised on merits, he has just confirmed the assessment order. Such an approach for denial of natural and substantial justice by the Ld. CIT (A) cannot be upheld and accordingly the order of the Ld. CIT (A) is set aside. We are remitting the appeal back to the file of the Ld. CIT (A) to deal and decide the issue afresh after considering the decision of the Tribunal in assessee’s own case and also provide due and sufficient opportunity to the assessee to represents its case. The assessee is also directed to co-operate in the proceedings before the Ld. CIT (A) and should furnish all the necessary documents and the decisions which it seeks to rely upon. Accordingly, the appeal of the assessee is allowed for statistical purposes.

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