ITO ware 2(1), Ghaziabad V. Yogendra Kumar, Ghaziabad

CO 27/DEL/2020

AI Insights

This case involves a cross objection filed by the Revenue against the order of the Commissioner of Income Tax (Appeals)-I, Noida, which had dismissed the assessee's appeal for non-compliance with the mandatory provisions of section 249(4)(a) of the Income Tax Act, 1961. The Revenue challenged the CIT (Appeals) order, claiming it was passed without jurisdiction. However, during the proceedings, it was revealed that the related appeal (ITA No. 2758/Del/2019) had already been resolved, rendering the cross objection infructuous. The Tribunal, therefore, dismissed the cross objection, noting that it did not arise from the appeal in question.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 113067 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 25 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 10-08-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 03-08-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 15-06-2020
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Competent authority; Set aside
• Section: 201

Judgement Text

C. O. No. 27/Del/2020 (in I.T.A. No. 2758/Del/2019) 1 IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH “S.M.C.” NEW DELHI ] BEFORE SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER, S.M.C. C. O. No. 27/Del/2020 ( in आ.अ.सं/.I.T.A No. 2758/Del/2019 ) िनधाᭅरणवषᭅ/Assessment Year : 2010-11 Income Tax Officer, Ward : 2 (1) Ghaziabad. बना म Vs. Shri Yogendra Kumar, S/o. Shri Thokar Singh alias Yoga Prakash, Village & Post : Morta, Ghaziabad – 201 001. Uttar Pradesh. PAN No. AEUPY5089B अपीलाथŎ / Appellant ŮȑथŎ / Respondent िनधाᭅᳯरतीकᳱओरसे / Assessee by : N o n e; राजˢकीओरसे / Department by: Shri Om Parkash, Sr. D. R.; सुनवाईकᳱतारीख/ Date of hearing: 04.08.2023 उ᳃ोषणाकᳱतारीख/ Pronouncement on: 11.08.2023 आदेश / O R D E R PER C. N. PRASAD, J.M. : This cross objection is filed by the Revenue against the order of the Ld. Commissioner of Income Tax (Appeals)-I, Noida C. O. No. 27/Del/2020 (in I.T.A. No. 2758/Del/2019) 2 [hereinafter referred to CIT (Appeals)] dated 28.12.2018 for assessment year 2010-11. 2. In the cross objection the Revenue has challenged the order of the ld. CIT (Appeals) on the ground the order of the CIT (Appeals) is illegal, bad in law and non-est being passed without jurisdiction though the appeal of the assessee was dismissed by the ld. CIT (Appeals) for non-compliance of the mandatory provisions of section 249(4)(a) of the Income Tax Act, 1961 (the Act) by the assessee. 3. At the time of hearing the Ld. DR filed a letter dated 31.01.2023 issued by Pr. Commissioner of Income Tax (PCIT), Ghaziabad. On the query raised by the Bench that the appeal of the assessee in ITA. No. 2758/Del/2019 against which this cross objection No. 27/Del/2020 was filed, was already disposed of by the Tribunal and the cross objection filed against the appeal became infructuous, the Ld. DR submits that based on the letter of the PCIT the cross objection may be disposed of. 4. None present for the assessee. The facts relating to the present cross objection are that the assessee is having PAN: AEUPY5089B and filed appeal for Assessment Year 2010-11 which was disposed of by the Tribunal on 26.02.2020 in ITA. No. 2758/Del/2019. The facts as narrated in the letter issued by the PCIT are as under:- C. O. No. 27/Del/2020 (in I.T.A. No. 2758/Del/2019) 3 “Kindly refer to your office letter F. No.118/CIT(OSD)R- 2(1)/GZB/MA/2022-23/1995 dated 16.01.2023 on the above mentioned subject. 2. From the perusal of the case records submitted to this office, it is noted that the records have files of two assessees namely Sh. Yogendra Kumar, A.Y. 2010-11 PAN: AEUPY5089B & Sh. Yogendra, A.Y. 2010-11, PAN: AUVPY5440R. Brief facts of these cases are as under:- Sh. Yogendra Kumar S/o Sh. Thokar Singh, Vill-Morta, Ghaziabad A.Y. 2010-11 PAN: AEUPY5089B. Assessment in this case u/s 147/144 of the I.T. Act was completed by the AO on 31.10.2017 at total Income of Rs.11,57,500/- after making addition of Rs.11,57,500/- on account of unexplained cash deposits in the bank account of the assessee. Aggrieved with the assessment order, assessee preferred an appeal before the CIT(A)- I, Nolda who vide order dated 28.12.2018 dismissed/rejected the appeal of the assessee. Since, the order was passed by the CIT(A)-I, Noida without jurisdiction, the Department preferred an appeal before Hon'ble ITAT challenging the impugned order. The AO, in his report, mentioned that an e-mail has been received In his office from Sr. DR, SMC Bench, New Delhi on 08.12.2022 with an attachment i.e. a letter dated 08.12.2022 and the ITAT order dated 26.02.2020 in respect of Sh. Yogendra (PAN:AUVPY5440R)Vide this attached letter, the Sr. D.R. has stated that: "3. With reference to C.O. 27/Del/2020 in ITA No. 2758/Del/2019 for A.Y. 2010-11 filed by the then ITO, Ward-2(1), Ghaziabad in the case of Sh. Yogendra Kumar (PAN: AEUPY50898), it has been noted that the referred appeal i.e. ITA No. 2758/Del/2019 already stood disposed off by the Hon'ble ITAT vide order dated 26.02.2020 (copy attached). It is also worth mentioning here that in the said order, the ITAT carried the facts and issues of some other case namely Sh. Yogendra, 250-Village Kanouja, Murad Nagar, Ghaziabad, Uttar Pradesh-131232 (PAN:AUVPY5440R) against the order of the CIT(A), Ghaziabad dated 31.01.2019 which was not the subject C. O. No. 27/Del/2020 (in I.T.A. No. 2758/Del/2019) 4 matter of the ITA No. 2758/Del/2019 in the case of the assessee in the present C.O. 4. Looking to that fact that the appeal in ITA No. 2758/Del/2019 has already been disposed on 26.02.2020, the present Cross Objection has become In fructuous. Hence, it is advised that matter be please be considered for taking necessary and appropriate action to file an MA or an appeal before the Hon'ble High Court, with the approval of the competent authority...." Sh. Yogendra S/o Sh. Balkishan, Vill- Kanouja, Ghaziabad, A.Y. 2010-11, PAN: AUVPY5440R. Assessment in this case was completed u/s 147/144 of the IT Act, 1961 on 06.12.2017 at total income of Rs.31,03,300/-. Aggrieved with the assessment order, assessee preferred an appeal before the CIT(A), Ghaziabad who vide order dated 31.01.2019 dismissed the appeal of the assessee. Aggrieved with the appeal order, assessee preferred an appeal before Hon'ble ITAT and the Tribunal vide order dated 26.02.2020 allowed the appeal of the assessee and set aside the case to the file of the AO. From the perusal of case records, It has also to be noted that the assessee has opted for VSV Scheme, 2020 and Form-5 has been issued to the assesseeAlso, the assessee while filing Form 1, mentioned the appeal number as 2758/Del/2019. In light of the discussion as above, it appears that the Hon'ble ITAT has correctly decided the appeal of Sh. Yogendra S/o Balkishan Vill- Kanouja, Ghaziabad, A.Y2010-11, PAN: AUVPY5440R under ITA No2758/Del/2019. However, the Departmental appeal In the case of Sh. Yogendra Kumar, PAN:AEUPY5089B, A.Y. 2010-11 is still pending before Hon'ble ITAT. Earlier, a cross objection In this case was filed by this office vide letter dated 15.06.2020 and the same was subsequently withdrawn by the Income Tax Officer Ward-2(1), Ghaziabad vide his letter dated 30.06.2020 addressed to the Assistant C. O. No. 27/Del/2020 (in I.T.A. No. 2758/Del/2019) 5 Registrar, ITAT, New Delhi due to the possible reasons that the ITO has wrongly quoted the appeal number as 2758/Del/2019 which did not belongs to the assessee or as per record available, no appeal was preferred by the assessee before Hon'ble Tribunal. Thereafter, a Departmental appeal before Hon'ble ITAT was filed by the Income Tax Officer, Ward-2(1), Ghaziabad vide his office letter dated 30.06.2020 along with a request for condonation of delay which is still pending before Hon'ble ITAT. Since the appeal of the Department is still pending before Hon'ble ITAT in the case of Sh. Yogendra Kumar S/o Sh. Thokar Singh, Vill-Morta, Ghaziabad A.Y. 2010-11 PAN: AEUPY50898your proposal for filing of M.A. In this case does not seem feasible. From the perusal of CSR for filling an MA, it appears that the JAO has not properly considered the material available on record. Therefore, has not pro you are directed to kindly to go through the records properly and depute a worthy officer / official to get the status of the departmental appeal in the case of Sh. Yogendra Kumar S/o. Thokar Singh from O/o the Sr. D. R. / Hon'ble ITAT. The official must carry the acknowledgment of appeal filed before Hon'ble ITAT In the case of the assessee. Encl. case records of both the assessees in 3 volumes.” 5. In the letter issued by the PCIT it is stated that the Revenue appeal is pending for assessment year 2010-11 in the case of Yogendra Kumar having PAN: AEUPY5089B. It is also noted that the cross objection filed vide letter dated 15.06.2020 was also withdrawn vide letter dated 30.06.2020 for the reason that the Assessing Officer has wrongly quoted the appeal No. 2758/Del/2019, which did not belong to the assessee. It is also noticed that Revenue filed appeal vide letter dated 30.06.2020 along with request for condonation of delay which is pending before the C. O. No. 27/Del/2020 (in I.T.A. No. 2758/Del/2019) 6 Tribunal as stated by the PCIT in this letter. In view of the above, the cross objection of the Revenue in C. O. No. 27/Del/2020 filed against ITA. No. 2758/Del/2019 becomes infructuous as the appeal in ITA. No. 2758/Del/2019 was already disposed of by the Tribunal vide order dated 26.02.2020 and further this cross objection is not arising out of the appeal in ITA. No. 2758/Del/2019. In the circumstances, the cross objection filed by the Revenue is dismissed as infructuous. Order pronounced in the open court on : 11/08/2023. Sd/- ( C. N. PRASAD ) JUDICIAL MEMBER Dated : 11/08/2023. *MEHTA* Copy forwarded to : 1. Appellant; 2. Respondent; 3. CIT 4. CIT (Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, New Delhi. Date of dictation 07.08.2023 Date on which the typed draft is placed before the dictating member 08.08.2023 C. O. No. 27/Del/2020 (in I.T.A. No. 2758/Del/2019) 7 Date on which the typed draft is placed before the other member 11.08.2023 Date on which the approved draft comes to the Sr. PS/ PS 11.08.2023 Date on which the fair order is placed before the dictating member for pronouncement 11.08.2023 Date on which the fair order comes back to the Sr. PS/ PS 11.08.2023 Date on which the final order is uploaded on the website of ITAT 11.08.2023 Date on which the file goes to the Bench Clerk 11.08.2023 Date on which the file goes to the Head Clerk The date on which the file goes to the Assistant Registrar for signature on the order Date of dispatch of the order