HARIPUR KRAFT CO,HIMACHAL PRADESH vs. INCOME TAX OFFICER, PARWANOO

That on the facts, circumstances and legal position of the case, Worthy CIT(A), NFAC in Appeal No. NFAC/2017-18/10043291 has erred in passing order u/s 250 dtd. 09.05.2022 as the same is in contravention of provisions of s. 250 of the Income Tax Act, 1961 (hereinafter referred to as "Act").

That on facts, circumstances and legal position of the case, Worthy CIT(A) has erred in treating the appeal filed by the appellant as not-maintainable by holding that the appellant has not paid tax on returned income even when said taxes stood duly paid much before the filing of appeal before Worthy CIT(A).

That on facts, circumstances and legal position of the case, Worthy CIT(A) has erred in confirming the addition of Rs. 24,06,890/- made by Ld. AO by erroneously disallowing the proportionate interest on interest free advances u/s 36(l)(iii).

That on facts, circumstances and legal position of the case, Worthy CIT(A) has erred in confirming addition of Rs. 33,23,754/- made by Ld. AO by erroneously denying deduction u/s 80IC r.w.s. 80AC.

That on facts, circumstances and legal position of the case, the order passed by Ld. AO and then by Worthy CIT(A) deserves to be quashed since the same have been passed without affording reasonable opportunity of being heard to the appellant.

That the appellant craves leave for any addition, deletion or amendment in the grounds of appeal on or before the disposal of the same.

At the outset, it is noted that there is a delay in filing the present appeal by 591 days as pointed out by the Registry.

1 During the course of hearing, the Ld. AR did not dispute the fact that there is a delay in filing the appeal. It was submitted that the reasons for the said delay in filing the appeal was that during the F.Y. 2021-22, the assessee had changed its Counsel and the new Counsel was under the belief that since the appeal has been filed by the earlier Counsel, the latter would be attending the appellate proceedings however for the reason best known to the earlier Counsel, he did not attend to the proceedings before the Ld. CIT(A) and which has resulted in passing of an exparte order.

2 It was submitted that it was only at the time of issuance of show cause under section 270A dt. 09/02/2024 that the assessee came to know about passing of the order by the Ld. CIT(A) and by that time, the limitation for filing the appeal had already expired.

3 It was submitted that the assessee thereafter took necessary steps and filed the present appeal before the Tribunal. It was accordingly submitted that the delay so happened in filing the present appeal was totally unintentional and beyond the control of the assessee where it has entrusted the Counsel to attend to the proceedings and that the assessee does not gain any advantage by not filing the appeal in time. It was accordingly submitted that in the interest of substantial justice, the delay in filing the present appeal may be condoned and in support the affidavit of the assessee as well as that of the Counsel were placed on record.

Per contra, the Ld. DR was heard who has submitted that there is a substantial delay in filing the present appeal and the cause shown by the assessee for the delay in filing the present appeal in terms of appointment of new Counsel as well as the belief

After hearing both the parties and considering the material available on the record, including the affidavit filed by the assessee as well as that of the Counsel, we find that the assessee cannot penalized for deficiency in service rendered by the Counsel who was entrusted with task not just filing the appeal but also attending to the appellate proceedings before the Ld. CIT(A). Further the assessee has stated in his affidavit that he has only came to know of passing of the impugned order only on receipt of the show cause under section 270A and prior to that, he was not in receipt of any communication. The said factual position has not been rebutted by the Revenue. In view of the same and considering the entirety of fact and circumstances of the case, we find that there was reasonable cause for the delay in filing the present appeal and the same is hereby condoned and the appeal is admitted for adjudication.

During the course of hearing, the Ld. AR submitted that the Ld. CIT(A) has dismissed the appeal so filed by the assessee for the sole reason that the assessee has not paid taxes on the returned income. In this regard, our reference was drawn to the findings of the Ld. CIT(A), NFAC, Delhi where in para 5 of the impugned order, he has stated that the appellant has not paid taxes due on the returned income and therefore the appeal filed by the assessee was not maintainable and dismissed for statistical purposes. Further the assessee has been granted liberty to file fresh appeal after paying taxes on the returned income.

1 In this regard, the Ld. AR submitted that the Ld. CIT(A) is not correct in stating that the assessee has not paid taxes on the returned income. It was submitted that complete tax on the returned income were paid alongwith ITR and even while filing the appeal in Form No. 35, it was clearly stated by the assessee that it has paid taxes on the returned income. It was accordingly submitted that the order so passed by the Ld. CIT(A) be set aside and the assessee be allowed an opportunity to present its case on merits and the matter may accordingly be set aside to the file of the Ld. CIT(A) to decide the same afresh after providing reasonable opportunity to the assessee.

Per contra, the Ld. DR did not raise any specific objection where the matter is set aside to the file of the Ld. CIT(A).

After hearing both the parties and considering the material available on the record, we find that the assessee while filing the appeal before the Ld. CIT(A) in Form No. 35 has stated that it has filed the return of income for the impugned assessment year and the acknowledgment number as well as the date of filing of the return of income which was 31/03/2019 was duly stated along with taxes paid amounting to Rs. 41,46,365/-. We therefore find that the findings of the Ld. CIT(A) that the assessee has not paid taxes on the returned income is not borne out from the records. Further, given the fact that the appeal has not been decided on the merits of the case, we hereby direct the Ld. CIT(A) to decide the matter afresh as per law after providing reasonable opportunity to the assessee.

In the result, appeal of the Assessee is allowed for statistical purposes. Order pronounced in the open Court on 12/03/2024 आकाश दीप जैन िव"म "सह यादव (AAKASH DEEP JAIN) ( VIKRAM SINGH YADAV) उपा"य" / VICE PRESIDENT लेखा सद"य/ ACCOUNTANT MEMBER AG Date: 12/03/2024

""यथ"/ The Respondent 3. आयकर आयु"/ CIT 4. आयकर आयु" (अपील)/ The CIT(A) 5. िवभागीय "ितिनिध, आयकर अपीलीय आिधकरण, च"डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड" फाईल/ Guard File