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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Per Vijay Pal Rao, JM:
This appeal by the assessee is directed against the order dated 02.08.2022 of Ld. Commissioner of Income Tax (Appeals) (in short Ld. CIT(A), National Faceless Appeal Centre, Delhi for Assessment Year 2014- 15.
There is a delay of 59 days in filing the present appeal. The assessee has filed an application for condonation of delay which is supported by the affidavit of the Director of the assesse company. Ld. AR of the assessee has submitted that the notices of hearing issued by the Ld. CIT(A) as well as the impugned order were not received by the assessee in physical mode Page 1 of 5
ITA No.408/Ind/2022 Kaipan Panmasala Pvt. Ltd. Page 2 of 5 but the same were found to be sent on the registered e-mail-ID but inadvertently the assessee could not notice the impugned order passed by the Ld. CIT(A) which was subsequently, realize when the counsel of the assessee on going through the e-proceeding tab on the E-filing Portal of the department come to know that the impugned order was already passed by the Ld. CIT(A) in way back in August 2022. Thereafter the assessee immediately took the steps to file the present appeal. Hence the Ld. AR has submitted that the delay in filing present appeal is neither intentional nor willful but But due to non-receipt of the notices as well as the impugned order in physical form the assessee was not aware till, it was noticed by the Ld. Counsel of the assessee at the time on going through e-filing portal of the department.
On the other hand, Ld. DR has fairly submitted that since the impugned order has been passed by the Ld. CIT(A),ex-parte therefore, he has no objection if the delay in filing the appeal is condoned.
Having considered the rival submissions and the reasons explained by the assessee in the application for condonation of delay as well as in the affidavit filed by the director of the assessee company, we find that the assessee has explained a reasonable cause for delay in filing the present appeal. Accordingly, we condoned delay of 59 days in filing the present appeal. The assesse has raised following grounds of appeal:
1.That on the facts and in the circumstances of the case and in law, the Ld CIT(A) erred in deciding the appeal ex-parte without giving I proper opportunity of being heard to the appellant.
2.That on the facts and in the circumstances of the case and in law, the Ld CIT(A) erred in confirming the action of the Assessing Officer in disallowing and adding back an amount of Rs. 73,63,168/- (4,222 kg multiplied by Rs. 1,744/- per kg) to the total income of the appellant on account of excess consumption of perfume-3 in comparison to consumption as per fixed formula without properly appreciating the facts of the case That on the facts and in the circumstances of the Page 2 of 5
ITA No.408/Ind/2022 Kaipan Panmasala Pvt. Ltd. Page 3 of 5 case and in law, the Ld CIT(A) erred in confirming the action of the Assessing Officer in disallowing and adding back an amount of Rs. 17,085/- (1,549 kg multiplied by Rs. 11.03/- per kg) to the total income of the appellant on account of excess consumption of gulabjal in comparison to consumption as per fixed formula without properly appreciating the facts of the case.
4.That on the facts and in the circumstances of the case and in law, the Ld CIT(A) erred in confirming the action of the Assessing Officer in disallowing and adding back an amount of Rs. 47,763/- (683 kg multiplied by Rs. 69.93/- per kg) to the total income of the appellant on account of excess consumption of glycerin in comparison to consumption as per fixed formula without properly appreciating the facts of the case.
5.That on the facts and in the circumstances of the case and in law, the Ld CIT(A) erred in confirming the action of the Assessing Officer in disallowing and adding back an amount of Rs. 5,626/- to the total income of the appellant on account of interest on TDS without properly appreciating the facts of the case
At the time of hearing, Ld. AR has submitted that the Ld. CIT(A) has passed impugned ex-parte order due to no reply or participation on behalf of the assessee. He has submitted that since the notices of hearing were issued by the ld. CIT(A) through registered e-mail ID and not in physical form therefore, the assesse due to oversight of the e-mail could not notice these notices of hearing issued by the Ld. CIT(A). He has thus, pleaded that the impugned order may be set aside and the matter be remanded to the record of the Ld. CIT(A) for deciding same afresh after giving opportunity of hearing to the assessee.
On the other hand, Ld. DR has fairly agreed to the plea of the assessee that matter needs to be re-adjudicated at the stage of the Ld. CIT(A) after giving one more opportunity of hearing to the assesse.
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ITA No.408/Ind/2022 Kaipan Panmasala Pvt. Ltd. Page 4 of 5 7. Having considering the rival submissions and carefully perusal of the impugned order, we find that the ld. CIT(A) in para 4 & 5 has dismissed the appeal of the assesse as under:
“4. Several notices were issued the appeal proceedings but there was no complain details are as under-
Sr.No. Date of Date of Comments compliance hearing
1 24.05.2022 06.06.2022 Neither any reply was filed nor any adjournment was sought Neither any reply was 2 08.06.2022 17.06.2022 filed nor any adjournment was sought Neither any reply was 3 20.06.2022 29.06.2022 filed nor any adjournment was sought
As the assesse has failed to controvert the findings of the AO as given in the assessment order, all the grounds of appeal are dismissed.
It is clear from the impugned order that after giving three opportunities of hearing the Ld. CIT(A) has dismissed the appeal of the assessee summarily. The impugned order is a non-speaking order which is not in accordance with the provision of section 250(6) of the Income Tax Act. Further, we find that the assessee could not present its case before the Ld. CIT(A) due to reason that the notices of hearing issued by the Ld. CIT(A) through E-portal at the registered e-mail ID and due to oversight the assessee was not aware about those notices sent to the registered e- mail ID. Accordingly, in the facts and circumstances of the case and in the interest of justice the impugned order is set aside and the matter is
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ITA No.408/Ind/2022 Kaipan Panmasala Pvt. Ltd. Page 5 of 5
remanded to the record of the Ld. CIT(A) for fresh adjudication on merits after giving a proper opportunity of hearing to the assesse.
In the result, appeal of assessee is allowed for statistical purposes.
The Order is pronounced in the open court after conclusion of the hearing on 08.05.2023 and the same is reduce in writing and signed on the date indicated below.
Sd/- Sd/-
(B.M. BIYANI) (VIJAY PAL RAO) Accountant Member Judicial Member
Indore, 08.05.2023
Patel/Sr. PS
Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Sr. Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore
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