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Income Tax Appellate Tribunal, NAGPUR BENCH, NAGPUR
Before: SHRI V. DURGA RAO & SHRI K.M. ROY, ACCOUNTANT, MEMBER
Date of Hearing – 20/06/2024 Date of Order – 20/06/2024
O R D E R PER K.M. ROY, A.M.
The present appeal has been preferred by the Assessee challenging the impugned order dated 07/06/2023, passed under section 250 of the Income Tax Act, 1961 ("the Act") by the learned CIT (A)-3, Nagpur, [“learned CIT (A)”], for the assessment year 2011-12.
The Assessee has raised following grounds of appeal:– “1] That on the facts and circumstances of the case, the assessment u/s 143(3) was already completed on 29/03/2014, reopening the case of the assessee by issuing notice u/s 148 of the I.T. Act in the month of March 2018 i.e. at the far end of sixth year from the last date of A.Y. 2011-12 is barred by limitation, hence reopening and subsequent assessment needs to be annulled”? 2] The assessment was completed ex-parte u/s 144 of the I.T. Act without affording opportunity of being heard to the assessee and therefore, the addition is not sustainable. 3] Tax on interest income earned by the NBFC is already paid, so there is no loss of revenue to the Department and therefore, the addition must be deleted as now it would amount to double taxation. 4] Any other ground that may be taken during the time of hearing of appeal.”
The facts of the case as culled down from the appellate order are reproduced below; 3.1 The appellant, an individual, had filed the return of income for the A.Y. 2011-12 on 29.06.2011 declaring total income of Rs.14,18,207/-. The assessment in this case has been computed under Section 143(3) of the Act, 1961 on 29.03.2014 determining total income at Rs.16,18,207. The AO passed the order u/s 144 r/w S.147 of the IT Act, 1961 and made disallowance of Rs.40,98,549/- u/s 40(a)(ia). Aggrieved by the said order, appellant is on appeal. 3.2 The appeal was filed with the delay of several days, the appellant submitted that Assessee received the copy of the Order on 19/10/2018. Thus, the limitation for filing appeal ended on 28/11/2018. Assessee is therefore delayed by 30 days for filing of appeal. The delay is caused as counsel of the assessee was travelling out of station for marriage. After coming back to Nagpur, the counsel was not keeping well and therefore was unable to file the appeal in time. Looking at the facts and circumstances of the case, it is prayed to kindly condone the delay for filing of the appeal as assessee has all the chances of winning the case. Prayer : Kindly condone the delay of 30 days in the interest of justice. 3.3 Appellant’s request for condonation of delay is found to be reasonable. Considering the facts and circumstance, the delay is condoned. 3.4 The hearing in this case was fixed on the following dates with due intimation electronically. SR.No. Date of Notice Date of Hearing Remarks 1. 28/12/2020 07/01/2021 No Reply 2 12/10/2022 21/10/2022 No Reply 3 21/04/2023 28/04/2023 No Reply Notice of the above opportunities were availed by the appellant.
3.5 All notices were sent by registered mail. Sufficient opportunity has been afforded to the appellant. It appears that the assessee is not interested pursuing in its appeal. The law aids those who are vigilant, not those who sleep upon their right. This principle is embodied in the well-known dictum, “VIGILANTIBUS NON DORMIENTIBUS JURA SUBVENIUNT.”
3.6 The provisions of Sec. 250(6) provides that the appellate orders of CIT(A) are to state the points arising out of assessee’s appeal. The order shall give out the reasons for such decisions. The underline rationale of the position is that such order is further appealed.
3.7 Speaking order obviously will enable any party to know positively the points decided in his favour or against. Absence of formulation of the point of decision for want of quality due to the lack of information inadvertently puts the authority in a Quandary.
3.8 Sec. 250(6) expressly embodies such provision, if an assessee fails to appear before the CIT(A) and fails to submit the relevant document, the CIT(A) is restricted to the disposal of the appeal based on the merits available on record. 3.9 The stand was furthered by the High Court in the following judgments.
Shri Balaji Woollen Mills vs. Assistant Commissioner of Income Tax, ITAT Delhi ‘G’ Bench. & 1239/Del/ 2011; Asst.yr.2005-06 2. Praveen Kumar Pruthi vs. Income Tax Officer, ITAT, Delhi “F” Bench, ITA. NO. 478/Del/2011, Asst.Yr. 1999-2000 3. Assistant Director of Income Tax vs. White Industries Australia Ltd, ITAT Bench ‘C’ Kolkata, ITA No. 507/Kol/2010, Asst.yr. 1992-93.
Jai International vs. Deputy Commissioner of Income Tax ITAT, Jodhpur Bench, ITA NO. 138/id/2018; Asst.yr.2012-13 5. Ramesh Sharma vs. Assistant Commissioner of Income Tax ITAT, Delhi “F” Bench, ITA No. 2911/Del/2013, A.Y.2006-07 6. Estate of Late Tukojirao Holkar vs. Commissioner of Wealth Tax, High Court of Madhya Pradesh, Misc. Civil Case No. 302 of 1991.
U-like Promoters (P) Ltd. Vs. Assistant Commissioner of Income Tax, ITAT Delhi “H” Bench, ITA Nos. 1569 to 1572/ Del/2009 and 1377 to 1379/Del/2012, A.Y. 1998-99 to 2004-05.
4. It is quite surprising to note that in spite of elaborate submissions reproduced above, as taken from the order of the CIT(A), ultimately the CIT(A) has dismissed the appeal on the ground of non-appearance. It has himself admitted by the CIT(A) in his order that it was the bounden duty to pass a speaking order. Accordingly, for the sake of natural justice and fair play, we remand the matter to CIT(A) for reconsideration and to pass a fresh order on merits. Needless to mention that the assessee must be given a reasonable opportunity to defend his case.
In the result, the appeal is allowed for statistical purpose. Order pronounced in the open Court on 20/06/2024.