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Facts
The appellant, a co-operative housing society, filed a nil return claiming deduction under Section 80P(2)(a)(i). The AO completed assessment under Section 143(3) read with Section 144B, making an addition of Rs. 45,14,566. The CIT(A) confirmed the AO's action and subsequently dismissed the appellant's appeal in limine for non-prosecution, which resulted in a 133-day delay in filing the appeal before the ITAT.
Held
The Tribunal condoned the 133-day delay in filing the appeal, finding it not willful. It held that the CIT(A) erred by dismissing the appeal in limine without disposing of it on merits, even in an ex-parte situation. The matter was therefore remanded back to the CIT(A) for fresh disposal on merits after providing the assessee a reasonable opportunity of hearing.
Key Issues
1. Whether the delay in filing the appeal before the ITAT should be condoned. 2. Whether the CIT(A) can dismiss an appeal in limine for non-prosecution without deciding it on merits.
Sections Cited
80P(2)(a)(i), 143(3), 144B, 250(6)
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Income Tax Appellate Tribunal, COCHIN BENCH
Before: SHRI INTURI RAMA RAO, AM
O R D E R This appeal filed by the assessee is directed against the order of the National Faceless Appeal Centre (NFAC), Delhi [CIT(A)] dated 31.05.2024 for Assessment Year (AY) 2020-21.
Brief facts of the case are that the appellant is a co-operative housing society engaged in granting loans to its members for house construction and acquisition. The return of income was filed on 14.01.2021 declaring total income of Rs. Nil after claiming deduction of Rs. 46,24,850/- u/s. 80P(2)(a)(i) of the Income Tax Act, 1961 (the Act). Against the said return of income, the assessment was completed by the Income Tax Officer, Ward-2, Tirur (hereinafter called "the AO") vide Nilambur Taluk Co-op. Employees Co-op. Society order dated 23.09.2022 passed u/s. 143(3) r.w.s. 144B of the Act. While doing so, the AO made an addition of Rs. 45,14,566/- under the head “income from other sources”.
Being aggrieved, an appeal was filed before the CIT(A), who vide the impugned order confirmed the action of the AO.
Being aggrieved, the appellant is in appeal before the Tribunal in the present appeal.
At the outset I find that there is a delay of 133 days in filing the present appeal. The appellant filed a petition along with an affidavit for condonation of delay in filing the appeal, wherein it is stated that due to technical error in the mail ID of the appellant, the hearing notices and the exparte order passed by the CIT(A) were not received by the appellant. Therefore, the delay is not willful for deliberate. Therefore it is prayed that the delay in filing the appeal may be condoned and the appeal may be admitted for adjudication. On a perusal of the averments made in the condonation petition, it is evident that the appellant is prevented by reasonable cause from filing the appeal. Therefore, I condone the delay and admit the appeal for adjudication.
When the appeal was called on nobody appeared on behalf of the assessee despite due service of notice of hearing. Therefore, I proceeded to dispose of the appeal after hearing the learned Sr. DR.
I find that the learned CIT(A) dismissed the appeal in limine for non prosecution. As contemplated u/s. 250(6) of the Act the CIT(A) is required to frame points of determination followed by a detailed Nilambur Taluk Co-op. Employees Co-op. Society discussion thereupon before passing the order. It is the settled position of law that the CIT(A), even while disposing of the appeal exparte, is duty bound to dispose of the appeal on merits. Reliance in this regard can be placed on the decision of the Hon'ble Bombay High Court in the case of PCIT vs. Premkumar Arjundas Luthra 279 CTR 614. Therefore, in the light of the above legal position I am of the considered view that the matter requires to be remanded to the file of the CIT(A) with the direction to dispose of the appeal de novo on merits after affording reasonable opportunity of hearing to the assessee. Ordered accordingly.
In the result, the appeal filed by the assessee is allowed for statistical purposes
Order pronounced in the open court on 19th February, 2025. 9.