2023 (2) TMI 1015 - AT - Income Tax

Intimation u/s 143(1) was not received by the assessee - CIT-A dismissed the appeal of the assessee on the ground of delay in filing the appeal by more than four years - assessee had also moved an application u/s 154 of the Act, seeking rectification of the intimation issued u/s 143(1) - HELD THAT - Assessee submitted that the assessee did not receive intimation. It was only obtained through e-mail on 10.11.2020 from CPC - vide letters dated 26.06.2018, 01.03.2019 and 23.12.2020, the assessee had requested assessing authority for rectification of mistake. Then again on 30.11.2021 and 22.02.2022, similar requests have been made by the assessee. Therefore, it cannot be inferred that the assessee had not received the intimation issued by the Department. We hereby set aside the impugned order and restore the issue to the file of Ld.CIT(A) to re-consider the issue related to delay in filing the appeal. Considering the fact that the assessee itself has been pursuing rectification u/s 154 of the Act. The assessee would be at liberty to file a proper application seeking condonation of delay. CIT(A) would decide the issue in accordance with law. The grounds raised by the assessee are allowed for statistical purposes.

Issues Involved:
1. Depreciation claim as a right of the assessee.
2. Dismissal of appeal by CIT(A) without sufficient opportunity of being heard.
3. Non-receipt of intimation under section 143(1).
4. Condonation of delay in filing the appeal.

Issue-Wise Detailed Analysis:

1. Depreciation Claim as a Right of the Assessee:
The assessee contended that the depreciation is a legal right, which was allowed in earlier years up to AY 2008-09 and subsequent years from 2013-14 onwards. The Assessing Officer (AO) was argued to have erred in disturbing the return under section 143(1), which is not an error to be adjusted under that provision. The Tribunal acknowledged this argument and noted the need for the lower authorities to reconsider the issue on its merits.

2. Dismissal of Appeal by CIT(A) Without Sufficient Opportunity of Being Heard:
The assessee argued that the CIT(A), NFAC dismissed the appeal ex-parte without providing a sufficient opportunity of being heard. The Tribunal found merit in this argument and emphasized the importance of natural justice, thereby setting aside the impugned order and restoring the issue to the file of CIT(A) for reconsideration.

3. Non-receipt of Intimation Under Section 143(1):
The assessee claimed that the intimation under section 143(1) was not received and was only obtained through e-mail on 10.11.2020 from CPC. The appeal was filed on 17.11.2020, within 30 days from the date of receiving the intimation as provided under section 249(2) of the IT Act. The Tribunal noted that the assessee had requested rectification of the mistake multiple times, indicating that the intimation was indeed received. However, to ensure fairness, the Tribunal decided to allow the assessee to file a proper application seeking condonation of delay.

4. Condonation of Delay in Filing the Appeal:
The CIT(A) dismissed the appeal on the grounds of a delay of more than four years in filing the appeal and the absence of an application seeking condonation of delay. The Tribunal, considering the totality of facts and the principles of natural justice, set aside the order and restored the issue to the CIT(A) for reconsideration. The Tribunal allowed the assessee to file a proper application for condonation of delay, directing the CIT(A) to decide the issue in accordance with the law.

Conclusion:
The Tribunal allowed all four appeals filed by the assessee for statistical purposes, directing the CIT(A) to reconsider the issues related to the delay in filing the appeal and the merits of the depreciation claim. The Tribunal emphasized the importance of natural justice and provided the assessee with an opportunity to file a proper application for condonation of delay. The decision in ITA No. 3048/Del/2022 was applied mutatis mutandis to the other appeals.

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