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Income Tax Appellate Tribunal, AHMEDABAD “A” BENCH, AHMEDABAD
Before: MS. SUCHITRA KAMBLE & SHRI B.M. BIYANI
आदेश / O R D E R आदेश आदेश आदेश
Per B.M. Biyani, A.M.:
THIS APPEAL:
This appeal filed by the assessee is directed against the order dated 11.11.2019 of learned Commissioner of Income-Tax (Appeals)-8, Ahmedabad [“Ld. CIT(A)”], which in turn arises out of the order of assessment dated 20.03.2015 passed by the learned DCIT, Circle-4(1)(1), Ahmedabad [“Ld. AO”] u/s 143(3) of the Income-tax Act, 1961 [“the Act”] for the Assessment- Year 2012-13.
ITA No. 90/Ahd/2020 A.Y. 2012-13 Page 2 of 7 BACKGROUND:
Brief facts are such that the assessee is a Private Limited Company engaged in the business of manufacturing and trading of Patta & Patti. The assessee filed return on 30.09.2012 declaring a total income of Rs. Nil. The case was selected under scrutiny and statutory notices were issued. Finally, the Ld. AO completed assessment u/s 143(3) of the Act, after making a total addition of Rs. 1,12,66,830/-, on 20.03.2015. The assessment-order was served on 31.03.2016, as per the date of service admitted by the assessee in Form No. 35 and also taken on record by Ld. CIT(A). Being aggrieved by assessment-order, the assessee filed appeal to Ld. CIT(A) on 18.04.2017 [though the Ld. CIT(A) has mentioned that the appeal was filed on 17.04.2017 but the Form No. 35 is digitally signed and e-filed on 18.04.2017]. The Ld. CIT(A) has ascertained that the appeal was filed after a delay of about 1 year and 17 days.
Ld. CIT(A) issued notice of hearing on 12.06.2018, 30.11.2018 and 17.10.2019. However, there was no response from assessee. Therefore, the Ld. CIT(A) proceeded to decide appeal ex-parte on the basis of material available on record. While deciding so, the Ld. CIT(A) observed that despite a delay of about 1 year and 17 days in filing the appeal, the assessee has not filed any application for condonation of delay. The Ld. CIT(A), however, observed that the assessee has submitted an affidavit dated 17.04.2017 in the “Dak” service of department. The Ld. CIT(A) has reproduced this affidavit on Page No. 4 of his order. The Ld. CIT(A) also observed and noted in his order that in Form No. 35-Column No. 15, the assessee has stated as under:
“We have submitted Reason of Condonation for Delay in Hard Copy on 18.04.2017. Kindly refer the submission and reason for condonation of delay.”
However, not finding the condonation of delay application of the assessee on record, the Ld. CIT(A) concluded that the assessee has not adduced any reason for delay in filing of appeal. Hence the Ld. CIT(A) dismissed the
ITA No. 90/Ahd/2020 A.Y. 2012-13 Page 3 of 7 appeal of assessee. Being aggrieved by the order of Ld. CIT(A), the assessee has preferred this appeal and now before us.
GROUNDS:
The Assessee has raised following grounds:
Whether, on the facts and in the circumstances of the case and in law, Ld. CIT (A) was not justified to condone the delay though it is/was a fit case for condoning the delay.
Whether, on the facts and in the circumstances of the case and in law, Ld. CIT(A) was right in passing ex-parte order in violation of principles of natural justice by confirming an illegal penalty order of the AO which was against the principles of natural justice, fair play, bad in law and ab initio void.
Whether, on the facts and in the circumstances of the case and in law, Ld. CIT(A) was right in passing ex-parte order by confirming the order of the AO where the AO has passed the order without considering the reply of the assessee dated 13.02.2015 during assessment and penalty proceedings and CIT Appeals in her penalty order.
Whether, on the facts and in the circumstances of the case and in law, Ld. CIT(A) was right in confirming the AO’s illegal order where the penalty proceedings were initiated in body of assessment order for furnishing inaccurate particulars of income whereas in penalty notice for concealed the particulars of income or furnished inaccurate particulars of such Income.
Whether on the facts and in the circumstances of the case and in law, Ld. CIT(A) was right in confirming AO’s action which was merely based on doubt and in complete violation of the statutory provision of section 68 which was not at all applicable in the fact and circumstances of the case.
Whether on the facts and in the circumstances of the case and in law, Ld..CIT(A) was right in confirming the disallowance without bringing on record any defects in Appellant’s audited books of accounts and without rejecting the books by the AO.
The appellant craves the leave to add, alter modify or amend the ground during the stage of the appeal.”
ITA No. 90/Ahd/2020 A.Y. 2012-13 Page 4 of 7 SUBMISSION OF PARTIES:
Before us, the Ld. AR submitted that the Ld. CIT(A) has himself accepted at least two points, viz. (i) that against Column No. 15 in Form No. 35 filed before him, the assessee has mentioned “We have submitted Reason of Condonation for Delay in Hard Copy on 18.04.2017. Kindly refer the submission and reason for condonation of delay”, and (ii) that an affidavit dated 17.04.2017 in support of the stay-application was filed by assessee in the “Dak” service. The Ld. AR, thereafter, referred to a copy of the condonation of delay application dated 13.04.2017. According to Ld. AR, this was the condonation of delay application filed with the aforesaid affidavit dated 17.04.2017 to Ld. CIT(A). Referring briefly to the contents of this condonation of delay application, the Ld. AR submitted that the assessee-company had been suffering severe financial difficulties and the situation worsened to the extent that the factory had to be closed in February, 2012. The banks, lenders and creditors mounted pressure on the assessee for their payments, in fact some of the parties filed police complaints against the assessee-company and its director Shri Gautam Shah. There were high demands of Income-tax, Central Excise and VAT department. According to Ld. AR, the severity of difficulties were so high that Shri Gautam Shah, director of the assessee, became ill and his whole family got paralysed. Shri Gautam Shah got several diseases and had to be admitted and re-admitted in hospitals multiple times for heart-angioplasty, lungs treatment, etc. A date-sheet showing various dates on which Shri Gautam Shah was admitted and re-admitted in the hospital is also mentioned in the condonation of delay application. According to Ld. AR, because of these difficult circumstances the appeal of the assessee-company could not be filed in time. Therefore, the assessee filed an application dated 23.05.2016 to Ld. CIT(A) with a request to grant permission for filing of delayed appeal. The said application is duly acknowledged by the office of Ld. CIT(A). But subsequently the assessee came to know that there is no provision in the Income-Tax Act which empowers the Ld. CIT(A) to grant
ITA No. 90/Ahd/2020 A.Y. 2012-13 Page 5 of 7 permission in advance for filing of delayed appeal. Therefore ultimately the assessee filed appeal to the Ld. CIT(A) on 18.04.2017 alongwith the affidavit dated 17.04.2017 accompanied by the condonation of delay application dated 13.04.2017. The Ld. AR submitted that the delay in filing appeal is neither wilful nor there was any malafide intention. The Ld. AR further submitted that by delayed filing, the assessee does not stand to derive any benefit or advantage. The Ld. AR submitted that the cause of imparting substantial justice shall be effectively carried only if the matter is once again remanded back to the Ld. CIT(A) for decision afresh.
Per contra, the Ld. DR opposed the submission of Ld. AR. The Ld. DR submitted that the delay in filing of appeal is not small, its quite substantial. The Ld. DR further argued that the reason advanced by the assessee for delay is not good and sufficient and therefore the assessee does not deserve any sympathy. Finally the Ld. DR submitted that the Ld. CIT(A) has rightly dismissed the appeal of assessee and his action must be upheld.
OUR ANALYSIS:
We have heard rival contention of both sides and perused the material held on record. We observe that the assessee has filed an affidavit dated 17.04.2017 duly notarised which the Ld. CIT(A) has also accepted in his order. While going through the contents of this affidavit, we observe that Shri Gautam Shah, Director of the assessee, has solemnly affirmed:
“I am conversant with the facts and circumstances of the case. Therefore I am competent to swear to this verification, do hereby affirm that the contents of the appeal and condonation of delay application are true to the best of my beliefs & knowledge”.
Thus, there is an affirmation in the affidavit to the effect that the contents of the condonation of delay application were true, which means there existed a condonation of delay application. We also observe that in Form No. 35 –
ITA No. 90/Ahd/2020 A.Y. 2012-13 Page 6 of 7 Column No. 15, the assessee has acknowledged the factum of filing hard copy of condonation of delay application. We also observe that the Ld. CIT(A) has admitted that the affidavit dated 17.04.2017 was filed through “Dak” service. These facts are in alignment and do not have any conflict. Therefore, there seems weightage in the point that the assessee had filed the condonation of delay application to the Ld. CIT(A), but for one or other reason, it could not reach to the Ld. CIT(A). Be that as it may be, we are of the view that in the interest of justice, one more opportunity must be given to the assessee to submit condonation of delay application to the Ld. CIT(A). This would also help the Ld. CIT(A) to take an appropriate view in the matter. Therefore, we refer this matter back to the file of Ld. CIT(A). The assessee shall submit condonation of delay application again to the Ld. CIT(A). The Ld. CIT(A) shall consider the condonation of delay application as well as the appeal on merit and take an appropriate view. With this, Ground No. 1 is hereby allowed for statistical purpose.
Since we have allowed Ground No. 1 and remitted matter back to the Ld. CIT(A), we are not going to adjudicate other Grounds at this stage.
DISPOSITION:
In the result, this appeal of Assessee is allowed for statistical purposes.
Order pronounced as per Rule 34 of I.T.A.T. Rules 1963 on this 25th day of May, 2022.
Sd/- Sd/- (SUCHITRA KAMBLE) (B.M. BIYANI) Judicial Member Accountant Member
Ahmedabad 25th May, 2022
Patel/Sr. PS
ITA No. 90/Ahd/2020 A.Y. 2012-13 Page 7 of 7 Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY
Assistant Registrar Income Tax Appellate Tribunal Ahmedabad Benches, Ahmedabad