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Facts
The assessee's appeal before the CIT(A) was dismissed in limine for an alleged one-day delay, even though the assessment order was received later, making the appeal timely. The original assessment by the AO was ex-parte, and benefits under Sections 11 & 12 were denied due to a delay in filing the audit report in Form 10B.
Held
The Tribunal reversed the CIT(A)'s finding of delay, noting the appeal was within time. It held that the ex-parte assessment denied the assessee an opportunity to present evidence. The matter was restored to the AO for readjudication, allowing the assessee a proper hearing and instructing the AO to consider the Gujarat High Court's decision on the procedural nature of audit report filing.
Key Issues
Validity of dismissing an appeal based on alleged delay in filing, and the denial of benefits under Section 11 & 12 due to a procedural delay in filing an audit report when the assessment was ex-parte.
Sections Cited
Section 11, Section 12
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Income Tax Appellate Tribunal, CUTTACK BENCH CUTTACK
(िनधा�रण िनधा�रण िनधा�रण वष� िनधा�रण वष� वष� / Assessment Year : 2018-2019) वष� ANKURAN Vs ITO, Exemption Ward, Berhampur C/o Maa Gruha Project Bandhugaon, Dist : Koraput-764027 PAN No. : AAATA 8149 A (अपीलाथ� अपीलाथ� अपीलाथ� /Appellant) अपीलाथ� (��यथ� ��यथ� ��यथ� / Respondent) ��यथ� .. िनधा�रती िनधा�रती क� िनधा�रती िनधा�रती क� क� ओर क� ओर ओर सेसेसेसे /Assessee by ओर : Shri S.K.Sarangi, CA राज�व राज�व क� राज�व राज�व क� क� ओर क� ओर ओर सेसेसेसे /Revenue by ओर : Shri S.C.Mohanty, Sr. DR सुनवाई क� तारीख / Date of Hearing : 27/01/2025 घोषणा क� तारीख/Date of Pronouncement : 27/01/2025 आदेश आदेश / O R D E R आदेश आदेश Per Bench : The present appeal is filed by the assessee against the order of ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi, passed in Appeal No.NFAC/2017-18/10246290, vide DIN & Order No.ITBA/NFAC/S/250/2024-25/1069079646(1), for the assessment year 2018-2019.
It was submitted by the ld. AR that in the course of assessment, the assesee had not been able to produce the evidences as called for by the AO. It was the submission that the assessment order is dated 28.03.2023. The assesee had filed his appeal before the ld. CIT(A) on 27.04.2023. It was the submission that as per the ld. CIT(A), there was one day delay in filing the appeal. It was the submission that the assessment order was received by the assesee only on 29.03.2023 and consequently it should be deemed that the appeal of the assesee is within the time. However, the ld. CIT(A) has dismissed the appeal of the assesee in limine alleging one issued by the ld. CIT(A) on 14.09.2024, copy of which is placed in the paper book at page 1, the date for response was 30.09.2024 but the ld. CIT(A) had already been dismissed the appeal of the assesee on 25.09.2024. It was the further submission that in the course of assessment, the AO had denied the assesee the benefit of Section 11 & 12 of the Act on the ground that there was a delay in filing of the audit report. It was the submission that in view of the decision of the Hon’ble Gujarat High Court in the case of Anjana Foundation, reported in [2024] 168 taxmann.com 462 (Gujarat), dated 09.10.2024, the filing of audit report in Form No.10B is only a procedural requirement and just because there is a minor delay in filing of the audit report, the assesee should not been denied the benefit u/s.11 & 12 of the Act. It was the prayer that the assessment, being ex-parte, issues may be restored to the file of the AO for readjudication and also to consider the decision of the Hon’ble Gujarat High Court in the case of Anjana Foundation (supra).
In reply, ld. Sr. DR did not raise any serious objection.
We have considered the rival submissions. A perusal of the assessment order clearly shows that the same is an ex-parte order. A perusal of the order of the ld. CIT(A) shows that the appeal was dismissed in limine on an alleged delay of one day. A perusal of the assessment order shows that the assessment order has been passed on 28.03.2023 then obviously the assesee should have been given at least one day’s time to accept the service, even though it is on the online mode. If the the order of the assessing authority is taken as 29.03.2023 then the appeal filed by the assesee on 27.04.2023 would be within time. This being so, the finding of the ld. CIT(A) that the appeal of the assesee is delayed by one day is reversed. Considering the fact that the assessment order is ex-parte order and the assesee had not had an opportunity to produce the documents before the AO, in the interest of justice, the issues in the appeal are restored to the file of the ld. AO for readjudication after granting the assesee adequate opportunity of being heard to substantiate its case. The AO shall also consider the decision of the Hon’ble Gujarat High Court in the case of Anjana Foundation, referred to supra, at the time of readjudication of the issues.
In the result, appeal of the assesee is partly allowed for statistical purposes.
Order pronounced in the open court on 27/01/2025.