M/S. JSIS IRON & STEEL INDIA PVT. LTD.,KOLKATA vs. ACIT, CC-XXIII, KOLKATA, KOLKATA

The assessee in the present case is a Company, which is engaged in the business of manufacturing of CI casting and non-alloy steel ingot. The return of income for the year under consideration was filed by it on 31.10.2005 declaring total income of Rs.5,82,371/-. In the assessment completed under section 143(3) vide an order dated 28.12.2007, the total income of the assessee was determined by the Assessing Officer at

Against the order passed by the Assessing Officer under section 144 read with section 263, an appeal was filed by the assessee before the ld. CIT(Appeals) after making a payment of Rs.250/- towards appeal fees. According to the ld. CIT(Appeals), the appeal fees payable by the assessee as per the provisions of section 249(1)(i) was Rs.1,000/- and appeal filed by the assessee without making payment of appropriate appeal fees was not maintainable. He, therefore, dismissed the appeal of the assessee in limine without going into the merit vide his appellate order dated 27.04.2012, which is impugned by the assessee in this appeal being ITA No. 13/KOL/2015.

After the dismissal of its appeal by the ld. CIT in limini vide his appellate order dated 27.04.2012, another appeal was filed by the assessee before the ld. CIT(Appeals) against the order passed by the Assessing Officer under section 144 read with section 263 after paying the appeal fees of Rs.1,000/-. Since there was a delay in filing the said appeal, an application seeking condonation of the said delay was also moved by the assessee. The ld. CIT(Appeals), however, again treated the said appeal as not maintainable on the ground that the assessee was not

I have heard the arguments of both the sides and also perused the relevant material available on record. As rightly submitted by the ld. counsel for the assessee, when there was a defect in the appeal initially filed by the assessee against the order of the Assessing Officer passed under section 144 read with section 263 in short payment of appeal fees, the ld. CIT(Appeals) should have pointed out the same giving the assessee an opportunity to remove the said defect. The ld. CIT(Appeals), however, did not give such opportunity to the assessee and straightway proceeded to dismiss the appeal of the assessee in limine vide his appellate order dated 27.04.2012, which in my opinion, is not justified. It is also observed that there is a delay of 870 days on the part of the assessee in filing its appeal against the said order being ITA No. 13/KOL/2015. In the application filed for condonation of delay, the assessee has submitted that another appeal was filed by it before the ld. CIT(Appeals) against the same order of the Assessing Officer passed under section 144 read with section 263 after making payment of the requisite appeal fee of Rs.1,000/- with a hope that the ld. CIT(Appeals) would dispose of the same on merit and since the present appeal was filed as a result of dismissal by the ld. CIT(Appeals) even of the second appeal holding the same to be not maintainable, there was a delay of 870 days in filing the said appeal. Keeping in view all the relevant facts of the case, I am of the view that the reason given by the assessee for the delay in filing the present appeal constitutes a reasonable cause. Accordingly, the said delay is condoned.

The impugned order passed by the ld. CIT(Appeals) dated 27.04.2012 is, therefore, set aside and the matter is remitted back to the

As a result of decision rendered by me while disposing of the appeal of the assessee being ITA No. 13/KOL/2015, the other appeal filed by the assessee being ITA No. 14/KOL/2015 has become infructuous and the same is accordingly dismissed.

In the result, the appeal of the assessee being ITA No. 13/KOL/2015 is treated as allowed for statistical purposes, while the appeal of the assessee being ITA No. 14/KOL/2015 is dismissed. Order pronounced in the open Court on July 20, 2016.