2023 (6) TMI 509 - AT - Income Tax

Dismissal of appeal in limine - refusing to condone the delay in filing the appeal by the assessee - delay was due to non-receiving of intimation by the assessee - Counsel pointed that without proper opportunity the deduction u/s 80IB was rejected in processing of return u/s 143(1) - HELD THAT - There is a delay of 9 years is a huge delay for adjudicating the appeal by the ld. CIT(A). But the assessee also submitted the reasonable cause for filing the appeal in delay. In fact, the revenue also not able to submit proof for any other mode of service of intimation to the assessee. However, through the Email there is huge confusion in relation to the service of intimation u/s 143(1) of the assessee. The assessee submitted the condonation of delay with an affidavit and also the ld. counsel respectfully relied on the order of Senior Bhosale Estate (HUF) v. ACIT 2019 (11) TMI 940 - SUPREME COURT and Shakuntala Devi Jain vs Kuntal Kumari And Ors. 1968 (9) TMI 116 - SUPREME COURT We find that the assessee has a sufficient cause for non-submission of the appeal within due time. The merit was also not considered in appeal stage as it is decided in limine. Therefore, we remit back the issue to the ld. CIT(A) and direct to pass the order on merits, denovo - Appeal of the assessee allowed for statistical purposes.

Summary

Issues:
Delay in filing appeal before the ld. CIT(A) and subsequent dismissal of the appeal based on the delay.

Analysis:
The appeal was against the order of the ld. Commissioner of Income Tax (Appeals) for A.Y. 2010-11, emanating from the order of the ld. ADIT, CPC, Bangalore, passed under section 143(1) of the Income Tax Act, 1961. The assessee claimed deduction under section 80IB, which was rejected, leading to a demand of Rs.12,35,390. The delay in filing the appeal was 9 years, with the assessee submitting an affidavit explaining the delay due to non-receipt of intimation. The ld. CIT(A) dismissed the appeal citing the delay as the reason, despite the affidavit submitted by the assessee.

The ld. counsel for the assessee argued that the delay was unintentional and attributed to the non-receipt of intimation by the assessee. The counsel highlighted that the intimation might have been sent to an email address maintained by an accountant who had left the company without informing the management. The assessee sought condonation of delay and requested the appeal to be heard on merits. The ld. Sr. DR supported the ld. CIT(A)'s order.

Upon review, the Tribunal noted the significant delay but also considered the reasonable cause presented by the assessee. The Tribunal observed a lack of proof regarding alternative modes of service of intimation to the assessee. The assessee submitted an affidavit and relied on legal precedents, including cases where delays were condoned due to lack of knowledge about orders. The Tribunal found a sufficient cause for the delay and remitted the issue back to the ld. CIT(A) for a fresh decision on merits, emphasizing the need for a fair hearing for the assessee.

Conclusively, the Tribunal allowed the appeal for statistical purposes, directing the ld. CIT(A) to reconsider the case on merits, ensuring the assessee receives a reasonable opportunity for a fair hearing.