M/S. ZENITH EXPORTS LIMITED,KOLKATA vs. ACIT, CIRCLE-5, KOLKATA, KOLKATA

The assessee in the present case is a Company, which is engaged in the business of Export of Industrial Leather Hand Gloves, Silk Fabrics & Made-ups and Manufacturing of Yarns, Ready-made Garments and 100% Natural Silk Fabrics. The return of income for the year under consideration was filed by it on 30.10.2002 declaring a loss of Rs.2,91,970/-. The said return was initially processed by the Assessing Officer under section 143(1) on 13.02.2003. Subsequently he, however, noticed that there was escapement of income of the assessee for the year ./2016 Assessment year: 2002-2003 Page 2 of 3 under consideration and accordingly a notice under section 148 was issued by him on 31.03.2009 reopening the assessment after recording the reasons. Pursuant to the said notice, assessment under section 147/143(3) was made by the Assessing Officer vide an order dated 31.12.2009, wherein the claim of the assessee for deduction under section 10B was disallowed.

Against the order passed by the Assessing Officer under section 147/143(3), an appeal was preferred by the assessee before the ld. CIT(Appeals) challenging the validity of the said assessment as well as disputing the disallowance made therein on account of its claim for deduction under section 10B on merit. Since there was a delay of above 40 days in filing the said appeal, an application seeking condonation of the said delay was also filed by the assessee along with its appeal. During the course of appellate proceedings before the ld. CIT(Appeals), the ld. Authorized Representative of the assessee appeared and argued the case of the assessee. According to the ld. CIT(Appeals), he, however, did not advance any argument on the issue of delay on the part of the assessee in filing the said appeal. The ld. CIT(Appeals), therefore, rejected the application of the assessee for condonation of the delay and dismissed the appeal of the assessee in limini by treating the same as barred by limitation. Aggrieved by the order of the ld. CIT(Appeals), the assessee has preferred this appeal before the Tribunal.

I have heard the arguments of both the sides and also perused the relevant material available on record. As submitted by the ld. counsel for the assessee, an application dated March 15, 2010 was filed by the assessee along with its appeal before the ld. CIT(Appeals) seeking condonation of the delay in filing the said appeal. A copy of the said application is also placed on record before me by the ld. counsel for the assessee and a perusal of the same shows that the marginal delay in filing its appeal before the ld. CIT(Appeals) was explained therein giving reasons for the said delay. In these circumstances, I am of the view that ./2016 Assessment year: 2002-2003 Page 3 of 3 the ld. CIT(Appeals) ought to have given an opportunity to the ld. A.R. of the assessee to plead the case of the assessee on this issue, even though it was inadvertently left to be argued by him or atleast should have disposed of the application for condonation of delay filed by the assessee on merit. Since the ld. CIT(Appeals) has failed to do so, I consider it fair and proper and in the interest of justice to set aside the impugned order passed by the ld. CIT(Appeals) and remit the matter back to him for disposing of the appeal of the assessee afresh after considering the request of the assesese for condonation of delay on merit in accordance with law.

In the result, the appeal of the assessee is treated as allowed for statistical purposes. Order pronounced in the open Court on December 21, 2016.