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Facts
The assessee, a partnership firm, filed its return for AY 2013-14, but the case was selected for scrutiny. Notices were not complied with, and the Assessing Officer (AO) framed an ex-parte assessment. The assessee appealed to the CIT(A), alleging that books were retained by the AO and that a partner had appeared. The CIT(A) dismissed the appeal for want of prosecution.
Held
The Tribunal noted that the delay in filing the appeal was 350 days, but condoned it based on the affidavit explaining the death of the main accountant and the COVID-19 illness of the newly appointed accountant. The Tribunal found that the CIT(A) had overlooked Section 250(6) of the Income-tax Act and failed to ascertain if notices were properly served.
Key Issues
Whether the CIT(A) was justified in dismissing the appeal for want of prosecution without ascertaining service of notices and compliance with Section 250(6), and whether the delay in filing the appeal should be condoned.
Sections Cited
250(6) of the Income-tax Act, 1961
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Income Tax Appellate Tribunal, BANGALORE BENCHES “A”, BANGALORE
Before: Shri Chandra Poojari & Shri Prakash Chand Yadav
O R D E R
Per Prakash Chand Yadav, JM :
The present appeal of the assessee is arising from the order of the learned CIT(A) dated 28th April, 2023 having DIN & Order No.ITBA/NFAC/S/250/2023-24/1052429153(1) for assessment year 2013-2014.
Present appeal is delayed by 350 days. The counsel for the assessee has drawn the attention of Bench towards the affidavit of the partner and argued that the main accountant of the assessee, namely Bhaskar B, who was handling the taxation affair has expired in July 2021. It has further been contended that the newly appointed accountant also suffered covid-19 attack and hence the delay happened may kindly be condoned.
(AY 2013-14) M/s.Bannari Constructions. 3. Ld DR strongly opposed the condonation application and argued that the appeal of the assessee is required to be dismissed as bared by limitation.
After considering the rival submissions we are of the view that it is settled position of law that unless mala-fide writ large the delay in filing appeals should ordinary be condoned as held by the Apex Court in the case of Collector, Land Acquisition Vs. MST.Katiji & Ors., (167 ITR 471) (SC). Keeping in view the reasons mentioned by assessee in the condonation application supported with affidavit, we hereby condone the delay happened in filing of the present appeal. Now we adjudicate the present appeal.
The facts leading to the present appeal are that the assessee is a partnership firm, filed its return of income on 28th September, 2013 declaring an income of Rs.7,29,300. Thereafter, the case of the assessee was selected for scrutiny and notices were issued to the assessee. However, somehow, the notices remained un-complied with and the Assessing Officer (AO) framed the assessment ex parte.
3. Aggrieved with the order of the AO, the assessee filed an appeal before the learned CIT(A). In the statement of Facts(SOF), the assessee pointed out that the partner of the assessee firm had appeared before the AO and had also produced the books of account. It was also pointed out in the SOF before the CIT(A) that the AO had retained the books of assessee and has never returned the same to the assessee. The ld.CIT(A) observed that despite the issuance of five notices neither any one appeared on behalf of assessee nor any (AY 2013-14) M/s.Bannari Constructions. submissions were filed by the assessee in response to these notices. The ld.CIT(A),ignoring the provisions of section 250(6) of the Income- tax Act, 1961, the CIT(A)dismissed the appeal of the assessee for want of prosecution.
4. Now the assessee has come up in appeal before us. The Counsel for the assessee, at the outset, submitted that the matter may kindly be restored to the file of the AO for fresh adjudication in the interest of justice.
4. The learned Departmental Representative supported the orders of the authorities below.
After considering the rival submissions and perusing the material on record, we observe that the ld.CIT(A) though mentioned that he has issued five notices, yetfailed to point out whether any notice of hearing was actually served upon the assessee or not. The ld.CIT(A) has also overlooked the provisions of section 250(6) of the Act, which provision mandates that it is the abundant duty of the ld.CIT(A) to decide each and every ground of appeal and he cannot dispose of the appeal in limine. We further observe that in this case certain facts are required to be investigated at the end of AO. Therefore, in the interest of justice, we remit this matter to the file of the AO for fresh adjudication in accordance with law. Needless to say, the AO will provide proper opportunity of being heard to the assessee in the set aside proceedings.
(AY 2013-14) M/s.Bannari Constructions.
In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in the open court on 19th July, 2024.