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Income Tax Appellate Tribunal, VISAKHAPATNAM ‘SMC’ BENCH, VISAKHAPATNAM
Before: SHRI DUVVURU RL REDDY, HON’BLE
PER DUVVURU RL REDDY, Judicial Member :
This appeal filed by the assessee is against the order of the Ld.CIT(A)-NFAC in DIN & Order No. ITBA?NFAC/S/250/2022- 23/1050778259(1), dated 15/03/2023 arising out of the order passed U/s. 143(3) of the Income Tax Act, 1961 [the Act] for the AY 2014-15.
2 2. At the outset, it is noticed from the record that there is a delay of 09 days in filing the appeal before the Tribunal. In this regard, the Ld. AR drawn the attention of the Bench to the Affidavit filed by the assessee wherein the reasons for not filing the appeal within the prescribed time limit were explained and sought for condonation of delay. For immediate reference, the contentions of the Affidavit for condonation of delay are extracted herein below:
“1. Whereas on 09/05/2023 assessee was affected with Viral Fever with throat infection and was advised by Doctors to confine himself in the house for 10 days, hence he was not available to sign the appeal papers that was prepared for filing of appeal before the Hon’ble ITAT.
Immediately after recovery the appeal papers were signed and filed before the Hon’ble ITAT on 23/05/2023 causing a delay of 9 days.
3 …….”
From the above contents of the affidavit filed by the assessee, I am of the considered view that there is a reasonable and sufficient cause that prevented the assessee in filing the appeal before the Tribunal within the prescribed time limit.
Therefore, in my view, it is a fit case to condone the delay and hence I hereby condone the delay of 9 days in filing the appeal
3 before the Tribunal and proceed to adjudicate the appeal on merits.
Brief facts of the case are that the assessee is an individual engaged in the business of IMFL, commission and income from property, filed his return of income on 21/11/2014 for the AY 2014-15 admitting net income of Rs.9,88,550/- and claimed excess TDS of Rs. 6,94,290/-. The case was selected for scrutiny under CASS and subsequently notices U/s. 143(2) and 142(1) of the Act were issued and served on the assessee. In response to the above notices, the assessee’s Authorized Representative furnished the information along with the books of accounts as called for by the Ld. AO from time to time. After examining the assessee’s submissions and the record submitted before him, the Ld. AO computed the assessee’s income as apparent in pages 2 to 4 of the assessment order and made certain additions aggregating to Rs. 18,14,523/- and accordingly determined the total income at Rs. 28,03,070/- vide the assessment order dated 22/12/2016.
Aggrieved by the order of the Ld. AO, the assessee went on appeal before the Ld. CIT(A).
On appeal, the Ld. CIT(A)-NFAC dismissed the appeal of the assessee by holding that though sufficient opportunities were 4 provided to the assessee to come up with the ground wise written submissions along with documentary evidence in support of his contentions raised vide Grounds of Appeal, there has been total non-compliance to the notices issued. Therefore, the contentions raised vide grounds of appeal and the statement of facts cannot be taken on face value. Therefore, these contentions of the assessee are without merit and are hereby rejected (para 5 of the Ld. CIT(A)- NFAC’s order). Thus, the Ld. CIT(A)-NFAC upheld the order of the Ld. AO and dismissed the appeal of the assessee in-limine.
Aggrieved by the of the Ld. CIT(A)-NFAC, the assessee is in appeal before the Tribunal by raising the following grounds of appeal:
“1. That under the facts and circumstances of the case the order passed by the Ld. CIT(A)-NFAC U/s. 250 of the Act dated 15/03/2023 is against the facts of the case and provisions of law.
2. The Ld. CIT(A)-NFAC erred under the facts and circumstances of the case and provisions of law erred in dismissing the appeal in limine.
3. The Ld. CIT(A)-NFAC ought to have provided sufficient opportunity to the appellant before dismissing the appeal ex-parte.
4. For these and such other grounds that may be adduced at the time of hearing, Hon’ble Tribunal is prayed that the case may please be remitted back to the CIT(A) to decide it on merits, providing one more opportunity, in the interest of natural justice.”
At the outset, the Ld. AR submitted before the Bench that the Ld. CIT (A)-NFAC has passed ex-parte order without providing proper
5 opportunity to the assessee of being heard. It was therefore pleaded that the matter may be remitted back to the file of the Ld CIT (A) in order to provide one more opportunity to the assessee of being heard. Ld. DR, on the other hand, vehemently opposed to the submissions of the Ld. AR and argued that sufficient opportunities had been provided to the assessee however, on the given dates of hearing, neither the assessee nor his Representative come up with the ground wise written submissions along with documentary evidence in support of the assessee’s contentions raised in his grounds of appeal before the Ld. CIT (A). It was further submitted that the Ld. CIT (A)-NFAC had no other option but to pass ex-parte order based on the materials available on record. Hence, it was pleaded that the order passed by the Ld. CIT(A)-NFAC does not call for any interference.
I have heard the rival submissions and carefully perused the materials on record. On examining the facts of the case, I find that the Ld. CIT (A)-NFAC had posted the case on two occasions. However, there was no response from the assessee on the given dates of hearing.
Therefore, the Ld. CIT (A)-NFAC was left with no other option except to adjudicate the appeal ex-parte. In this situation, considering the facts and circumstances of the case, following the principles of natural justice, considering the prayer of the Ld. AR, and in the interest of justice, I
6 hereby remit the matter back to the file of Ld. CIT (A) in order to consider the appeal afresh on merits by providing one more opportunity to the assessee of being heard. At the same breath, I also hereby caution the assessee to promptly co-operate before the Ld. CIT (A) in the proceedings failing which the Ld. CIT (A) shall be at liberty to pass appropriate order in accordance with law and merits based on the materials on the record. It is ordered accordingly.
In the result, appeal filed by the assessee is allowed for statistical purposes as indicated hereinabove.
Pronounced in the open Court on 31st July, 2023.