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Income Tax Appellate Tribunal, VISAKHAPATNAM BENCH, VISAKHAPATNAM
Before: SHRI DUVVURU RL REDDY, HON’BLE
PER DUVVURU RL REDDY, Judicial Member :
This appeal filed by the assessee against the order of the Ld. CIT (A)-NFAC, Delhi in DIN & Order No. ITBA/NFAC/S/250/2022-23/1048260525(1), dated 27/12/2022 arising out of the order passed U/s. 143(3) of the Act for the AY 2019-20.
At the outset, the Ld. AR brought to my notice that there is a delay of 44 days in filing the appeal before the Tribunal. With respect to the delay, the Ld. AR drawn my attention to the condonation petition filed by the assessee explaining the reasons for filing of the appeal beyond the prescribed time limit and read out the contents therein. The relevant portion of the petition for condonation of delay is extracted herein below:
“1…… 2. Sri P. Vara Prasad Yadav, President of the appellant trust is the authorized person to sign the appeal form. He suffered from viral fever during the last week of February, 2023 and therefore he was under bed rest and treatment during the period from 23/02/2023 to 06/03/2023. On the very next day ie on 7th March, 2023 he suffered from severe back paid and he was advised to take complete bed rest for two weeks (copies of medical certificates are enclosed herewith). However, even after two weeks rest the pain did not reduce. Therefore, Sri P. Vara Prasad Yadav continued the bed rest for another two weeks ie., till 06 th April, 2023. As the President was not in a position to attend any affairs during the period from 23/02/2023 to 06/04/2023, the appeal could not be filed within the time. 3……”
After hearing the Ld. AR and on perusal of the contents of the petition for condonation of delay along with the affidavit filed by the assessee, I am of the opinion that there is a reasonable and sufficient cause that prevented the assessee in filing the appeal within the prescribed time limit. Therefore, I am of the view that this is a fit case to condone the delay and accordingly I
3 hereby condone the delay of 44 days in filing the appeal before the Tribunal and proceed to adjudicate the appeal on merits.
Brief facts of the case are that the assessee e-filed its return of income for the AY 2019-20 on 28/06/2019 declaring NIL income. The return was processed U/s. 143(1) of the Act.
Thereafter, the case was selected for scrutiny and the notice u/s. 142(1) was issued and served on the assessee wherein the assessee was asked to furnish the information called for. In response to the notice, the assessee filed the requisite information called for from time to time. On perusal of the assessee’s submissions, the Ld. AO found that the registration U/s. 12AA of the Act before the Ld. CIT (Exemption), Hyderabad was rejected and therefore the Ld. AO, in the absence of registration U/s. 12A as Trust, treated the assessee as AOP.
Further, on perusal of the return, the Ld. AO noted that the assessee has shown gross receipts at Rs.4,31,250/- and the assessee has claimed expenses U/s. 11 of the Act. On being asked vide notice U/s. 142(1), the assessee replied that the claim was mistakenly made u/s. 11 as the assessee has applied for registration U/s. 12A of the Act but the same was rejected later.
Vide para 3.4 of the assessment order, the Ld. AO observed that since the assessee had shown the following receipts in its accounts viz., (i) Donation of Rs. 4,31,250/-; (ii) credit entries as
per bank account of Rs. 32,700/- and (iii) Rs. 2,45,072/-, as the assessee is not having the certificate U/s. 12AA of the Act, all the receipts received by the assessee are treated as income of the assessee. Thereafter, the Ld. AO [NFAC] completed the assessment U/s. 143(3) r.w.s 144B of the Act on 16/09/2021 and determined the total income at Rs. 6,01,209/-. Aggrieved by the order of the Ld. AO-NFAC, the assessee filed an appeal before the Ld. CIT(A)-NFAC.
On appeal, the Ld. CIT(A) dismissed the appeal of the assessee as the assessee has not responded to the notices issued and lapse of considerable time. While dismissing the assessee’s appeal, the Ld. CIT(A)-NFAC upheld the decision of the Ld. AO in making the additions. Aggrieved by the order of the Ld. CIT(A)- NFAC, the assessee is in appeal before the Tribunal by raising the following grounds of appeal:
“1. The order of the Ld. CIT (A) is contrary to the facts and also the law applicable to the facts of the case. 2. The Ld. CIT (A) is not justified deciding the appeal ex- parte. 3. The Ld. CIT(A) is not justified in sustaining the addition of Rs. 4,31,250/- made by the Assessing Officer.
5 4. The Ld. CIT (A) is not justified in sustaining the addition of Rs. 32,700/- made by the Assessing Officer towards credit entries in the bank account.
5. The Ld. CIT(A) is not justified in sustaining the addition of Rs. 2,45,072/- made by the Assessing Officer towards opening balance of corpus fund.
6. The Ld. CIT(A) is not justified in sustaining the addition of Rs. 3,23,437 made by the Assessing Officer towards disallowance of 75% of the expenses. Any other grounds may be urged at the time of hearing.” 7.
At the outset, the Ld. AR submitted before me that the Ld. CIT (A)- NFAC has passed ex-parte order without providing proper 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)-NFAC 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 several opportunities had been provided to the assessee however, on the given dates of hearing, the assessee neither responded nor made any written submissions. 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 order of the Ld. CIT(A)-NFAC, I find that the Ld. CIT (A)-NFAC had posted the case on several occasions.
6 However, there was no response on behalf of the assessee before the CIT(A)-NFAC 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 as well as considering the prayer of the Ld. AR, in the interest of justice and also following the principles of natural justice, I hereby remit the matter back to the file of Ld. CIT (A)-NFAC 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)-NFAC in the proceedings failing which the Ld. CIT (A)-NFAC 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 the 30th May, 2023.