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Income Tax Appellate Tribunal, ‘C’ SMC BENCH, CHENNAI
Before: SHRI N.R.S. GANESAN
आदेश /O R D E R
This appeal of the assessee is directed against the order of the Commissioner of Income Tax (Appeals) -15, Chennai, dated 31.10.2018 and pertains to assessment year 2003-04.
The appeal was originally posted on 24.06.2019. At the request of the Ld. representative for the assessee, the appeal was adjourned to 10.07.2019. The Ld. representative had also taken note of the date of adjournment by signing on the appeal folder.
When the appeal was taken up for hearing on 10.07.2019, no one appeared for the assessee. Therefore, I heard the Ld. Departmental Representative and proceeded to dispose the appeal on merit.
There was a delay of 35 days in filing the appeal by the assessee before this Tribunal. An application was filed for condonation of delay. As per the application, the impugned of the CIT(Appeals) was said to be handed over to one Shri R.
Shanmugakumar, the Accountant, for forwarding the same to Tax Consultant for preparing the appeal papers. However, the Accountant said to have misplaced the impugned order of the CIT(Appeals), therefore, there was a delay.
After hearing the Ld. D.R., this Tribunal is of the considered opinion that misplacement of original order passed by the CIT(Appeals) amounts to a reasonable cause in not filing the appeal before this Tribunal. Therefore, the delay of 35 days in filing the appeal before this Tribunal is hereby condoned and the appeal of the assessee is admitted.
Now coming to the merit of the appeal, the first issue arises for consideration is reopening of assessment beyond the period of four years. The assessee has also raised an issue on merit with regard to deduction under Section 80-IB of the Income-tax Act, 1961 (in short 'the Act').
After hearing Shri K. Hari Govind, the Ld. D.R., this Tribunal finds that the assessee has raised the issue of reopening specifically before the CIT(Appeals). It is not in dispute that the assessment was reopened beyond the period of four years. The original assessment order was passed under Section 143(3) of the Act. Therefore, it is for the Assessing Officer to explain how the assessee failed to disclose the material facts required for completing the assessment. In this case, there is no whisper about the failure of the assessee either in the assessment order or in the CIT(Appeals)’s order. The CIT(Appeals), after reproducing the judgment of Bombay High Court in Siemens Information Systems Ltd. v. ACIT (343 ITR 188) and the judgment of Rajasthan High Court in Pushtikar Laghu Vyparik Pratishthan Bachat Evam Sakh Sahkari Samiti Ltd. v. Union of India (17 taxmann.com 131), has simply observed that the reopening is held to be valid. The CIT(Appeals) has not taken pain of discussing how the assessee failed to furnish the required details for completing the assessment as provided in proviso to Section 147 of the Act. Since, admittedly, the assessment was reopened after expiry of four years, this Tribunal is of the considered opinion that it is necessary to bring on record the failure of the assessee in furnishing the details required for completing the assessment. The reopening of assessment would go to root of the matter. Therefore, the CIT(Appeals) has to examine the same afresh on the basis of the material available on record. Accordingly, the order of the CIT(Appeals) is set aside and the issue of reopening is remitted back to the file of the CIT(Appeals). The CIT(Appeals) shall re-examine the matter and bring on record the factual aspects such as failure of the assessee in providing required material for completing the assessment and thereafter decide the issue afresh in accordance with law, after giving a reasonable opportunity to the assessee.
Now coming to the merit of the appeal with regard to deduction under Section 80-IB of the Act and filing of Form 10CCB, this Tribunal is of the considered opinion that the CIT(Appeals) has to re-examine the same after considering the issue of reopening of assessment. Accordingly, the issue on merit is also remitted back to the file of the CIT(Appeals). The CIT(Appeals) shall re-examine the matter in the light of the material that may be filed by the assessee and thereafter decide the issue afresh in accordance with law, after giving a reasonable opportunity to the assessee.
In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in the court on 4th September, 2019 at Chennai.