BOUTIQUE DE FLEUR,KOLKATA V. ITO, WARD 45(2), , KOLKATA

ITA 446/KOL/2025

AI Insights

The case involves Boutique De Fleur, which appealed against the order of the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, concerning the Assessment Year 2017-18. The primary issue was the non-condonation of a significant delay in filing the appeal, initially dismissed by the CIT(Appeals) due to the delay not being condoned and the appeal being deemed non-est. The ITAT, after considering the circumstances, decided to condone the delay and remand the case back to the CIT(Appeals) for a decision on the merits, highlighting the importance of natural justice and providing the assessee another opportunity to present its case.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 772254 (ITAT-KOLKATA)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-08-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Assessment Year: 2017-2018
• Laws Referred To: Income Tax Act
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Capital asset converted into stock in trade
• Section: 142(1); 133(6)

Judgement Text

" ITA No. 446/KOL/2025 (A.Y. 2017-2018) Boutique De Fleur 1 IN THE INCOME TAX APPELLATE TRIBUNAL, ‘A’ BENCH, KOLKATA Before Shri Duvvuru RL Reddy, Vice-President (KZ) & Shri Rajesh Kumar, Accountant Member I.T.A. No. 446/KOL/2025 Assessment Year: 2017-2018 Boutique De Fleur,………………………………..Appellant Lawgical Consultants, 2D, Bentinck Street, Unit No. A, 3rd Floor, Kolkata-700001 [PAN:AAJFB1035D] -Vs.- Income Tax Officer,………………………….....Respondent Ward-45(2), Kolkata, 3, Government Place (West), Kolkata-700001 Appearances by: N o n e, appeared on behalf of the assessee Shri Dheeraj, Addl. CIT, Sr. D.R., appeared on behalf of the Revenue Date of concluding the hearing: August 05, 2025 Date of pronouncing the order: August 25, 2025 O R D E R Per Duvvuru RL Reddy, Vice-President (KZ):- The present appeal is directed at the instance of assessee against the order of ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi dated 15th January, 2024 passed for Assessment Year 2017-18. Printed from counselvise.com ITA No. 446/KOL/2025 (A.Y. 2017-2018) Boutique De Fleur 2 2. The appeal is time barred by 166 days in filing the appeal by the assessee before the ld. CIT(Appeals). Though the assessee filed a condonation petition before the ld. CIT(Appeals) and prayed to condone the delay, but the ld. CIT(Appeals) did not condone the delay and without condoning the delay decided the appeal on merits as there was no sufficient cause for condonation of the delay for non-filing of condonation petition within the specified time limit before him in conformity with the provisions of section 249(2) of the Act. The ld. A.R. further submitted that the assessee was not aware of the date of hearing before the ld. CIT(Appeals). Though the assessee in the Form No. 35 has stated the reason that there was a delay due to medical condition only. Therefore, the assessee was not in a position to appear before the ld. CIT(Appeals). But the ld. CIT(Appeals) decided the appeal filed by the assessee without condoning the delay on the ground that there was no sufficient cause for condonation of the inordinate delay in filing of the appeal as well as negligent attitude on the part of the appellant. On being aggrieved, the assessee preferred an appeal before the ITAT. 2.1. The appeal is also time-barred by 334 days in filing the appeal by the assessee before the Tribunal. Though the assessee did not file any condonation petition in support of condonation of delay. 3. Considering the facts and circumstances of the case, we are of the view that the assessee was prevented in filing the appeal within the stipulated time. Therefore, we are inclined to condone the delay of 334 days. Hence the delay is condoned. Printed from counselvise.com ITA No. 446/KOL/2025 (A.Y. 2017-2018) Boutique De Fleur 3 4. The facts in brief are that during the demonetization period (09.11.2016 to 30.12.2016), the assessee-firm deposited cash of Rs.13,18,000/- in its Kotak Mahindra Bank, Minto Park Branch. The assessee was requested vide notice under section 142(1) of the Act dated 14.03.2018 to furnish a true and correct return of its income duly verified as per section 140 of the Act and as per format prescribed in Rule 12 of the Income Tax Rules on or before 31.03.2018. In response to notice under section 142(1), the assessee did not file its return of income. Thereafter notice under section 133(6) of the Act was sent to the Branch Manager, Kotak Mahindra Bank, Minto Park Branch on 04.09.2019. In response, Kotak Mahindra Bank furnished bank statement through e-mail and it was found that during FY 2016-17, it had deposited total cash of Rs.45,31,590 in its bank account including demonetization period cash deposits of Rs.12,47,000/-. It was also found that total credits in its bank account were Rs.1,84,63,232/- for the FY 2016- 17. The assessee was requested to explain vide notice under section 142(1) dated 09.09.2019 the total credits in its bank account as well as cash deposits including demonetization cash deposit of Rs.1,84,63,232/-, but the assessee could not explain the same with proper supporting documents. Thereafter, a show- cause notice was issued to the assessee asking why total credits of Rs.1,84,63,232/- in its bank account should not be treated as unexplained money under section 69A of the Income Tax Act and should not be taxed under section 115BBE of the Act @ 60% on Rs.1,84,63,232/-. Getting no response from the side of assessee, the ld. Assessing Officer assessed the total income of the assessee at Rs.1,84,63,232/-. On being aggrieved, the assessee preferred Printed from counselvise.com ITA No. 446/KOL/2025 (A.Y. 2017-2018) Boutique De Fleur 4 an appeal before the ld. CIT(Appeals) with a delay of 166 days. But the Ld. CIT (Appeals) without taking into consideration of the same simply dismissed the Appeal filed by the assessee saying that “since the inordinate delay in filing the appeal has not been condoned, consequently the appeal of the appellant becomes non- est and therefore the same is not admitted.”. 5. On being aggrieved, the assessee preferred an appeal before the ITAT. None appeared on behalf of the assessee at the time of hearing. Therefore, we have decided to dispose of the appeal after hearing the ld. Departmental Representative and perusing the material available on record. 6. It was the submission of the ld. Departmental Representative that sufficient opportunity was being provided to the assessee. The ld. CIT(Appeals) did not condone the delay on the ground that there was no sufficient cause for condonation of the delay in filing of the appeal as well as negligent attitude on the part of the appellant. The ld. D.R. pleaded to uphold the order of ld. CIT(Appeals). 7. We have perused the material available on record. By considering the totality of the facts and circumstances of the case, we are inclined to condone the delay. Therefore, in order to ensure the principle of natural justice, we are of the view that it is a fit case to provide one more opportunity to the assessee to decide the case on merit. Therefore, we remit the matter back to the file of ld. CIT(Appeals) with a direction to dispose of the appeal without any inference on the observations of earlier order passed by him and Printed from counselvise.com ITA No. 446/KOL/2025 (A.Y. 2017-2018) Boutique De Fleur 5 to decide the issue afresh on merit. At the same breath, we also hereby caution the assessee to promptly co-operate with the proceedings before the Ld. CIT(Appeals) failing which the Ld. CIT(Appeals) shall be at liberty to pass appropriate order in accordance with law and merits of the case, based on the materials available on the record. Thus, the grounds raised by the assessee in the appeal is allowed for statistical purposes. 8. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 25/08/2025. Sd/- Sd/- (Rajesh Kumar) (Duvvuru RL Reddy) Accountant Member Vice-President Kolkata, the 25th day of August, 2025 Copies to :(1) Boutique De Fleur, Lawgical Consultants, 2D, Bentinck Street, Unit No. A, 3rd Floor, Kolkata-700001 (2) Income Tax Officer, Ward-45(2), Kolkata, 3, Government Place (West), Kolkata-700001 (3) CIT(Appeals), NFAC, Delhi; (4) CIT - ; (5) The Departmental Representative; (6) Guard File TRUE COPY By order Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S. Printed from counselvise.com "