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Income Tax Appellate Tribunal, ‘A’ / ’SMC’ BENCH: CHENNAI
Before: SHRI N.R.S. GANESAN
आदेश / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER:
This appeal of the assessee is directed against the order of the Commissioner of Income Tax (Appeals)-15, Chennai, dated 30.11.2018, and pertains to the AY 2010-11. The assessee has also filed additional grounds of appeal before this Tribunal, which is part of the original grounds raised earlier.
2. Shri N.Vijay Kumar, Ld.Counsel for the assessee submitted that the AO made an addition of Rs.33,75,750/- which was claimed as a loan from friends and relatives before the AO. On appeal by the assessee before the Ld.CIT(A), even though the issue of re-opening and levy of penalty u/s.271D was raised, the CIT(A) found that the assessee has failed to submit any evidence and challenge the addition of Rs.33,75,750/-.
Moreover, there was a delay of 35 days in filing of the appeal before the Ld.CIT(A). According to the Ld. Counsel, the assessee was in medical treatment. Therefore, the assessee could not file the appeal in time before the Ld.CIT(A). According to the Ld.AR, since the assessee was admitted in the hospital, the delay of 35 days in filing of the appeal may be condoned and appeal may be remitted back to the file of the AO.
On the contrary, Shri AR.V.Sreenivasan, Ld. Departmental Representative submitted that even though the Ld.CIT(A) has not condoned the delay of 35 days in filing of the appeal, he proceeded to dispose of the appeal on merits. Therefore, there is no need to remit back the appeal to the AO. Since the assessee has not raised the issue of addition of Rs.33,75,750/- before the Ld.CIT(A), he could not raise the issue at this stage.
I have considered the rival submissions on either side and also perused the material available on record.
No doubt, there was a delay of 35 days in filing of the appeal. The Ld.CIT(A) has not condoned the delay. However, he proceeded to dispose the appeal on merits also. The Ld.CIT(A) may not get jurisdiction to proceed further on merits without condonation of delay. When the appeal is not filed validly and having refused to condone the delay, the Ld.CIT(A) cannot proceed further to consider the matter on merits. Therefore, the delay of 35 days in filing of the appeal is deemed to be condoned by the Ld.CIT(A). Even otherwise, the delay was due to hospitalization of the assessee during the relevant period of time. Therefore, this Tribunal found that there was a reasonable cause in not filing of the appeal within the period of limitation before the Ld.CIT(A). Accordingly, the delay of 35 days in filing of the appeal before the Ld.CIT(A) is condoned.
Now, coming to the merit of the appeal the only issue relates to addition of Rs.33,75,750/-. However, there was a confusion in the grounds raised before the Ld.CIT(A). The assessee appears to have raised the issue with regard to the violation of Sec.269SS of the Act and levy of penalty u/s.271D of the Act. A bare reading of the grounds raised before the Ld.CIT(A), it appears that the main grievance of the assessee appears to be an addition of Rs.33,75,750/-. Therefore, the issue with regard to addition of Rs.33,75,750/- has to be adjudicated on merits. Before this Tribunal, the assessee has specifically raised the issue of addition of Rs.33,75,750/- since the Ld.CIT(A) has not considered the issue on merits, this Tribunal is of the considered opinion that the matter needs to be re-examined by the Ld.CIT(A). Accordingly the issue of addition of Rs.33,75,750/- is remitted to the file of the Ld.CIT(A). The Ld.CIT(A) shall examine the addition of Rs.33,75,750/- on merits on the basis of material available on record 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 partly allowed for statistical purposes.