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Income Tax Appellate Tribunal, “J” BENCH, MUMBAI
Before: SHRI MAHAVIR SINGH, JM & SHRI MANOJ KUMAR AGGARWAL, AM
O R D E R PER MANOJ KUMAR AGGARWAL (AM) : 1. This appeal has been filed by the assessee for Assessment Year [A.Y.] 2008-2009 against the order of the CIT(A) – 5, Mumbai dated 14/03/2013 passed u/s. 271(1)(c) of the Income Tax Act, 1961 raising the following Grounds of Appeals:- 1. “The order of Learned CIT(Appeals) is contrary to Law, facts and circumstances of the case.
2. The order of Learned CIT(Appeals) is against the principal of natural justice as the notice of hearing was not served at the address for communication authorized by the assessee and written submissions made by the assessee were not discussed on merits and the appeal was dismissed.
3. The Learned CIT(Appeals) had erred in confirming the penalty of Rs. 54,38,063/-., charged by the Assessing Officer for non-deduction of tax u/s. 40(a)(ia) of the Act for payments aggregating Rs. 3,18,800/- and depreciation of Rs. 1,78,08,076/- claimed on capital refurbishments.”
Facts in brief are that the assessee is a domestic private Resident company who filed the return of income for A.Y. 2008-09, declaring loss of Rs. 6,17,30,059/-. The return was processed under Section 143(3) and the assessment was completed by Assessing Officer [AO] vide order dated 21/12/2010 after making certain disallowances including depreciation on capital refurbishment. The total loss was re-computed at Rs. 4,36,03,183/-. Further, penalty proceedings u/s. 271(1)(c) were initiated for the furnishing inaccurate particulars of income in respect of depreciation wrongly claimed to the extent of Rs. 1,78,08,076/-. The penalty order u/s. 271(1)(c) was passed by the AO on 21/06/2011 wherein penalty of Rs. 54,38,063/- was imposed on the assessee. The penalty order was challenged before the first appellant authority but the same was dismissed ex-parte vide Commissioner of Income Tax [CIT] order dated 14/03/2013.
The order of the CIT was passed ex-parte as none appeared on behalf of assessee despite several opportunities being provided to him.
Aggrieved, the assessee is in appeal before us. None is present on behalf of the assessee.
We notice that the appeal has been filed with the delay of 38 days. Assessee has requested for condonation of delay vide his letter dated 27/01/2015 on the following ground:- “
The company admits that the time limit for filing the subject appeal has lapsed on 30. June 2013. Consequently, the aforesaid appeal had been filed with a delay of thirty-eight days. In this connection, it is submitted that the delay in filing an appeal was owing to fact that the Company had shut down its business operations with no staff retained on rolls. Consequently, the order of the learned CIT(A) had been brought to the notice of the directors only after a significant time period. The company submits that the delay was not willful or deliberate and requests the Hon’ble Bench to condone the delay and admit the appeal. We sincerely regret the inconvenience caused.”
4. Further, a perusal on record shows that the assessee has contended that the order of CIT(A) is against the Principal of Natural justice as notices of hearing were not served upon assessee at the address for communication given by the assessee and penalty has been affirmed without consideration of written submission made by the assessee. To support this contention, n affidavit dated 31/07/2013 to this effect has been filed by the assessee.
Therefore, in view of the principal of natural justice, we deem it fit to provide one final opportunity to assessee to present his case before lower authorities. Accordingly, the matter is restored back to the file of CIT to consider the assessee’s contentions.
In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 17th August, 2016.