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Income Tax Appellate Tribunal, GAUHATI BENCH,
Before: SHRI MANISH BORAD & SHRI SONJOY SARMA
IN THE INCOME TAX APPELLATE TRIBUNAL GAUHATI BENCH, GAUHATI VIRTUAL HEARING AT KOLKATA BEFORE SHRI MANISH BORAD, ACCOUNTANT MEMBER AND SHRI SONJOY SARMA, JUDICIAL MEMBER ITA No.43/Gau/2019 Assessment Year: 2011-12 Meghalaya Co-op. Apex Assistant Commissioner of Bank Ltd. Income-tax, Circle - Shillong Vs. M. G. Road, Shillong- 793001 (PAN: AAAM8227G) (Appellant) (Respondent)
Present for: Appellant by : Shri Parthasarathi Choudhury, FCA Respondent by : Shri N. T. Sherpa, JCIT Date of Hearing : 26.07.2022 Date of Pronouncement : 10.08.2022 O R D E R PER SONJOY SARMA, JUDICIAL MEMBER: This appeal by the assessee is directed against the order of ld. CIT(A), Shillong vide Appeal No. CIT(A)/SHG/10014/2018-19 dated 28.11.2018 for A.Y. 2011-12 passed against the assessment order u/s 143(3)/263 of the Income-tax Act, 1961 (hereinafter referred to as ‘the Act’) by ACIT, circle-Shillong dated 15.11.2016.
The assessee has raised the following grounds of appeal before this Tribunal: “1. Revocation of the Learned CIT(A)'s order in rejecting the condonation of delay. The Appellant prays for considering the condonation of delay which was denied by the Learned CIT(A) in appeal filed u/s 246A on 22/05/2018 vide order u/s 250/251 dated 28/11/2018 and admit the appeal now before the Hon'ble Tribunal. The Learned CIT(A) without giving any consideration to the merit of the case and existence of sufficient cause, denied condonation of delay in filing an appeal against order u/s 143(3)/263 after 522 days. The Learned CIT(A) did not consider the facts that during the intervening period of 522 days between the assessment order u/s 143(3)/263 dated 15/11/2016 and filing of appeal
2 ITA No.43/Gau/2019 Meghalaya Co-op Apex Bank Ltd., AY 2011-12 u/s 246A on that Assessment order, on 22/05/2018, the Appellant had engaged itself thus: Before: i) The A.O. with rectification petition u/s 154 on the order u/s 143(3)/263 on 19/12/2016, which was rejected by the A.O. on 27/03/2017. ii) Learned CIT(A})u/s 246A on 05/04/2017 on the order u/s 154 as rejected on 27/03/2017 . iii) The Learned CIT(A) rejected the above appeal u/s 250 on 03/05/2018. iv) Finally again before Learned CIT(A) against the order u/s 143(3)/263 after the Learned CIT(A) dismissed the appeal filed against order u/s 154 as referred to ( iii) above. 2. Wrong method of calculation adopted in following rule 8D for the purpose of Section 14A as prevalent during the assessment year 2011-12. The Learned A.O. erred in law by effecting a wrong method of calculation of disallowance u/s 14A other than the stipulated method under Rule 8D of the I.T. Rules. Instead of considering only that part of investment, income from which is exempt from tax, he went on to apply the rule 8D (2)(iii), on the whole of the investments as appearing in the Balance Sheet, i.e., investments, income from which is free of income tax and also income that are subject to income tax as appearing in Schedule 11 of the statement of accounts. The Appellant prays that justice be meted out by adopting the correct calculation. 3. The Appellant prays to add, alter modify, clarity and/or withdraw the ground/s as the occasion may demand.”
Shri Parthasarati Choudhury, FCA appeared for the assessee and Shri N. T. Sherpa, JCIT, Ld. Sr. DR appeared for the revenue.
Before we adverting to the other grounds of appeal raised by the assessee, one of the core issues raised by the assessee is that the Ld. CIT(A) did not consider its condonation prayer for delay of 522 days while appeal filed u/s. 246A on 22.05.2018. Subsequently, same was rejected vide order dated 28.11.2018. While on perusal of the impugned order it is noticed that the Ld. CIT(A) without giving any consideration to the merit of the case dismissed the appeal of the assessee due to delay in filing the appeal against the order passed u/s. 143(3)/263 of the Act by the AO. At the time of hearing, Ld. AR of the
3 ITA No.43/Gau/2019 Meghalaya Co-op Apex Bank Ltd., AY 2011-12 assessee submits that the delay of 522 days happened in filing the appeal u/s. 246A of the Act before the Ld. CIT(A) against the assessment order dated 15.11.2016 on the following reasons: “1) the assessee filed a rectification petition u/s. 154 of the Act against the order passed u/s. 143(3)/263 of the Act by AO on 19.12.2016 and subsequently same was rejected on 27.03.2017; 2) consequent to rejection order dated 27.03.2017, the assessee preferred an appeal before the Ld. CIT(A) and the Ld. CIT(A) rejected the same u/s. 250 of the Act on 03.05.2018; 3) after the above, finally, the assessee filed an appeal before the Ld. CIT(A) against the original order dated 15.11.2016 passed u/s. 143(3)/263 of the Act by the AO.
Moreover, the Ld. AR submitted that the delay of 522 days arose in filing the appeal because during the intervening period the assessee had taken steps by initiating the provisions of section 154 of the Act and thereafter the assessee had filed separate appeal before the Ld. CIT(A) on the same ground and as such delay was happened 552 days in filing the appeal before the Ld. CIT(A) against the original order dated 15.11.2016 passed by the AO. He further submitted that the delay was not willful or deliberate on the part of the appellant/assessee and considering the circumstances of the case, and ends of justice one more opportunity should be given to the assessee by condoning the delay and direction may be issued to Ld. CIT(A) to decide the appeal on merit of the case. The Ld. AR in support of the above facts filed an affidavit dated 06.07.2022 before this Tribunal stating the facts by which delay was happened in filing the appeal before the Ld. CIT(A), we have also perused the same. On the other hand, the Ld. DR relied on the orders of the authorities below. 6. We after hearing the rival submissions of the parties and also in the interest of justice and being fair enough to both the parties and in order to facilitate to determine the correct income of the assessee restore all the issues raised before us in the instant appeal to the file of
4 ITA No.43/Gau/2019 Meghalaya Co-op Apex Bank Ltd., AY 2011-12 the Ld. CIT(A) for afresh adjudication on merit of the case. We further direct the assessee to furnish necessary details as and when called for and should not taken any adjournment unless otherwise required for reasonable cause. We also direct the Ld. CIT(A) to examine the issues afresh on merits of the case and in the light of the documents and submissions made by the assessee pass a speaking order. It is also clear that since the delay of 522 days in filing the appeal before the Ld. CIT(A), we have already condoned such delay, therefore, the assessee need not to require to explain any further before the Ld. CIT(A) on this issue and Ld. CIT(A) while passing such order a reasonable opportunity of being heard should be given to the assessee. 10. In the result, the appeal of the assessee is allowed for statistical purposes. Order is pronounced in the open court on 10th August, 2022 Sd/- Sd/- (Manish Borad) (Sonjoy Sarma) ACCOUNTANT MEMBER JUDICIAL MEMBER Kolkata, Dated: 10.08.2022 JD, Sr. P.S. Copy to: 1. The Appellant: 2. The Respondent: 3. CIT(A), Shillong 4. The CIT- 5. The DR, ITAT, Gauhati Bench, Gauhati //True Copy// [ By Order Sr. Pvt. Secy