DURLABH SAREES`,BHOPAL vs. ITO-1(1), BHOPAL, BHOPAL

This appeal by the Assessee is directed against the order dated 19.06.2023 of Commissioner of Income Tax (Appeal), National Faceless Appeal Centre (NFAC) for A.Y.2009-10. The assesse has raised following grounds of appeal:

“1.That on the facts and in the circumstances of the case of the assessee the Ld. Commissioner of Income Tax / National faceless Appeal Centre (NFAC) was not justified in dismissing the appeal.

ITANo.315/Ind/2023 Durlabh Sarees 2.That on the facts and in the circumstances of the case of the assessee the Ld. Commissioner of Income Tax / National faceless Appeal Centre (NFAC) was not justified in dismissing the appeal without any adjudication on merits or any other aspects of the appeal. 3.The assessee craves leave to add, alter amend or withdraw any ground of appeal on or before the time of hearing.".

2. Ld. AR of the assesse has submitted that the assesse is partnership firm and in the business of wholesale/retail trading in sharees and dress material. The assesse filed return of income u/s 139(1) of the Act on 30th September 2009 declaring total income of Rs.7,81,434/-. The return of income was processed u/s 143(1) but the assesse did not receive any intimation of processing and later on the assesse received a letter from the ITO 1(1), Bhopal dated 30.09.2021 regarding the demand of Rs.89,967/- as outstanding for assessment year under consideration. The assesse immediately submitted a letter to the ITO on 03.02.2021 informing that the assessee is unaware of any such demand and a copy of the order through which such demand was raised may be provided to the assessee. In response to the request made by the assesse the AO served the intimation u/s 143(1) dated 20.09.2010 through E-mail received by the assesse on 22.02.2021. Thus, Ld. AR has submitted that only on 22.02.2021 the assesse received the intimation u/s 143(1) and found that the demand was raised against the disallowance of depreciation while processing return of income u/s 143(1) of the Act. The assesse challenged the said order u/s 143(1)

ITANo.315/Ind/2023 Durlabh Sarees before the CIT(A) but the appeal of the assessee was dismissed by the CIT(A) as barred by limitation.

2.1 Ld. AR has submitted that when the assesse has explained the facts and circumstances and reasons for filing the appeal before the Ld. CIT(A) only after receiving the intimation u/s 143(1) vide E-mail dated 22.02.2021 then the appeal of the assesse ought to have been decided on merits instead of dismissing the same on the ground of limitation. Ld. AR has submitted that when the assessee has explained the cause of delay which is a reasonable and sufficient cause then the delay if any on the part of the assessee should have been condoned by the CIT(A) and the appeal of the assessee ought to have been decided on merits. Thus, Ld. AR has submitted that the impugned order of the CIT(A) may be set aside and the matter may be remanded to the record of the CIT(A) for deciding appeal of the assessee on merits.

ITANo.315/Ind/2023 Durlabh Sarees and circumstances which are reproduced by the CIT(A) in para 3 as under:

“3. The statement of facts filed by the appellant is as under: The assessee had filed its return of income on 30.09.2009 and revised the same on 01.10.2009 vide acknowledgement number 98289400011009. Thereafter demand letter dated 30.01.2021 is received by the assessee intimating an outstanding demand of Rs 89967.00. The assessee had filed an application dated 03.02.2021 as he is unaware of such demand requesting the AO to provide the details of such outstanding demand. Subsequently assessment order under section 143(1) was received by the assessee via email on 22.02.2021 in which a demand of Rs 126130.00 is appearing. In such order income from business or profession was considered amounting to RS 1128231.00 against the income offered by the assessee in its income tax return filed i.e. Rs 781434.00, because of disallowing the depreciation of Rs 346797.00 as claimed by the assessee, against which the present appeal is being filed."

4.1. Thus, the assesse has clearly explained that after receiving demand notice from the AO dated 30.01.2021 the assesse filed an application dated 03.02.2021 explaining the fact that the assesse is not aware about any such demand order giving rise to such demand. Subsequently the order u/s 143(1) was supplied to the assessee on 22.02.2021 which was challenged by the assessee by filing the appeal before the CIT(A). The main reason for not accepting the appeal by the CIT(A) is that the intimation u/s 143(1) was passed on 22nd September 2010 and was automatic sent by the system to the registered e-mail ID of the assessee. Though the CIT(A) has cited various case laws on the point however, the impugned order of the CIT(A) is completely silent about the actual fact of ITANo.315/Ind/2023 Durlabh Sarees services of the intimation dated 22.09.2010 prior to the 22.02.2021. The CIT(A) has not given any detail about earlier services of the intimation to this assesse. Therefore, when the department and particularly the AO has not provided any such material or information about the services of the intimation u/s 143(1) to the assesse then the reasons explained by the assessee with all chronological details and events about the knowledge of the impugned order u/s 143(1) when it was received on 22.02.2021 and that too on the specific request to AO to supply the same after the assesse received a demand notice dated 30.01.2021. The explanation of the assessee is also corroborated by the fact that the department has not brought anything on record to show that prior to 30.01.2021 any demand notice was served upon the assessee. Therefore, in the absence of any contrary fact or material to show that the assesse was served upon with the order u/s 143(1) prior to 22.02.2021 the explanation of the assessee for filing the appeal belatedly cannot be rejected. Accordingly in the facts and circumstances of the case when the assesse has received order u/s 143(1) only on 22.02.2021 then the delay prior to the said date of receipt of the order is liable to be condoned. Hence we condoned the delay if any in filing the appeal before the CIT(A). Since the CIT(A) has not decided the appeal on merits therefore, the impugned order of the CIT(A) is set aside and matter is remanded to the record of the CIT(A) for adjudication on merits after giving appropriate opportunity of hearing to the assesse.

ITANo.315/Ind/2023 Durlabh Sarees 5. In the result, appeal of the assessee is allowed for statistical purposes.

Order pronounced in the open court on 04 .01.2024.