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Income Tax Appellate Tribunal, PUNE ‘A’ BENCH, PUNE
Before: HON’BLE SHRI S. S. GODARA & SHRI G. D. PADMAHSHALI
ORDER Per G. D. Padmahshali, AM; This appeal is filed u/s 253(1)(a) of the Income Tax Act [‘the Act’] by the assessee challenging the order of National Faceless Appeal Centre, Delhi [‘NFAC/CIT(A)’] DIN & Order ITBA/NFAC/S/250/2023-24/1059407077(1) dt. 05/01/2024 passed u/s 250 of the Act which in turn arisen out of order of assessment dt. 15/06/2021 passed u/s 143(3) of the Act.
Briefly stated facts anent to the case are that; 2.1 The appellant assessee is a Co-op. Society engaged in the business of providing credit facilities, for the year under consideration had filed its return declaring NIL income. The case of the assessee was selected for scrutiny by service of notice u/s 143(2) of the Act. In the event of assessee’s failure to ITAT-Pune Page 1 of 4 Shree Kalika Devi Nagari Sahakari Pathsanstha Maryadit 80P(2) of the Act in relation to an interest of ₹1,49,24,859/- received/earned from its investment held with other Co-op. and commercial banks/financial institutions, the Ld. AO denied the deduction claimed u/s 80P(2) of the Act by placing reliance on Hon’ble Supreme Court decisions in ‘Totgars Co-op. Sales Society Vs ITO’ [2010, 188 Taxman 282 (SC)], ‘Mavilayi Service Co-op. Bank Ltd. Vs CIT’ [2021, 431 ITR 1 (SC)], and ‘CoC(import) Mumbai Vs Dilip Kumar & Company’ [2018, 9 SCC 1 (SC)]. 2.2 When aforestated denial of 80P(2) deduction is assailed in an appeal before first appellate authority, the Ld. NFAC accorded as many as six clear opportunities of hearing from dt. 06/04/2024 to 07/12/2023 which however remained unattended & un-responded. In absence of any representation or written submission from the assessee, the Ld. NFAC dismissed the appeal ex- parte on dual grounds viz; (1) for non-prosecution by the assessee in view of ‘CIT Vs B.N. Bhattacharya’ [1997, 118 ITR 461 (SC)] and (2) appeal was time barred by limitation as prescribed u/s 249(2) of the Act. 2.3 Aggrieved assessee brought up this appeal challenging the action of Ld. NFAC on violation of principle of natural justice and denial of deduction on merits.
We have heard the rival contentions, perused the material placed on record in light of rule 18 of ITAT-Rules 1963. The record prima-facie reveals ITAT-Pune Page 2 of 4 Shree Kalika Devi Nagari Sahakari Pathsanstha Maryadit (a) explain with the cogent evidence the delay in instituting its appeal before Ld. NFAC and (b) nor it could represent its case before the Ld. NFAC. When assessee failed on these dual reasons the Ld. NFAC dismissed the appeal ex-parte not only on the ground of non- prosecution but also on the ground of limitation.
At the outset, after vouching sufficiency of reasons beyond undeliberate 100 days delay in instituting first appeal before Ld. NFAC we after placing reliance on ‘Vijay Vishin Meghani Vs. DCIT & Anr’ reported 398 ITR 250 (Bom) and ‘Collector, Land Acquisition, Anantnag and Anr. Vs Ms Katiji and Others’ reported at 167 ITR 5 (SC), in the larger interest of justice deem it fit to direct the Ld. NFAC to condone said delay and entertain the appeal on merits as ‘none should be deprived of an adjudication on merits unless it is found that the litigant deliberately delayed the filing of appeal.’ 5. We are heedful to the restriction placed by clause (a) of sub-section (1) of section 251 of the Act which obligates the Ld. CIT(A) to adjudicate the issue either by confirming or annulling the addition or reducing or enhancing the addition made by the assessing officer without the right to remand the matter back. However, while exercising the jurisdiction u/s 251(1)(a) of the Act, the Ld. CIT(A) is mandated to state point of determination, its decision thereon and clear reasons therefore in terms of section 250(6) of the Act. This exercise by the Ld. CIT(A) is a pre-requisite and invariably necessary for each assessment year in each case irrespective of its repetition.
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Shree Kalika Devi Nagari Sahakari Pathsanstha Maryadit
It is a trite law as laid down by Hon’ble Supreme Court in case ‘Chandra Kishore Jha Vs Mahavir Prasad’ reported in 8 SCC 266 (SC), that ‘if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner’. Therefore, in our considered view, in the absence of clear authorisation in the statue permitting the Ld. NFAC to culminate proceedings without touching merits even in ex-parte proceedings is violative of provision of sub-section (6) of section 250 of the Act. In view hereof, we hold that, the impugned adjudication by the Ld. NFAC sidestepping the dictate is not in consonance with the provision of sub-section (6) of section 250 of the Act. For the reason, without commenting on merits of the case, we set aside the impugned order and remand the matter back to the file of Ld. NFAC with a direction to deal therewith de-nova after according not more than two opportunities and pass a speaking order in terms of section 250(6) of the Act.
The appeal in result is ALLOWED FOR STATISTICAL PURPOSES. In terms of rule 34 of ITAT Rules, the order pronounced in the open court on this Monday, 03rd day of June, 2024
-S/d- -S/d- S. S. GODARA G. D. PADMAHSHALI JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / PUNE ; दिनाांक / Dated : 03rd day of June, 2024 आदेश की प्रनिनलनप अग्रेनर्ि / Copy of the Order forwarded to :
1. 1. अपीलार्थी / The Appellant. 2. प्रत्यर्थी / The Respondent.
3. The CIT(A)-NFAC, Delhi (India) 4. The Concerned CIT (MH-India) 5. DR, ITAT, Bench ‘A’, Pune 6. गार्डफ़ाइल / Guard File. आिेशानुसार / By Order, वररष्ठ दनजी सदिव / Sr. Private Secretary आयकर अपीलीय न्यायादिकरण, पुणे / ITAT, Pune.
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