GULSHAN TYAGI,INDIRAPURAM V. INCOME TAX OFFICER, WARD 1(2), GHAZIABAD, GHAZIABAD

ITA 1438/DEL/2024

AI Insights

Gulshan Tyagi filed two appeals against the orders of the CIT(A)/National Faceless Appeal Centre, which dismissed his appeals on the grounds of delay in filing. The appeals were initially dismissed due to a delay of 663 and 487 days, respectively, without any submission from the Assessee for condoning the delay. The Tribunal noted the Assessee's contention that there was no delay if calculated from the actual receipt of the order. The Departmental Representative suggested restoring the appeals to the CIT(A) for a fresh decision. The Tribunal agreed, emphasizing the need for the Assessee to substantiate the delay and directed a re-examination of the appeals.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 474857 (ITAT-DELHI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2025
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR DHANESTA
• Keywords: Condonation of delay; Opportunity of being heard; Unexplained investment; Principle of natural justice; Reason to believe
• Section: 147; 148; 144; 143(2); 271(1)(c); 69; 274

Judgement Text

" 1 ITA Nos. 1440/Del/2024 & 1438/Del/2024 Gulshan Tyagi Vs. ITO IN THE INCOME TAX APPELLATE TRIBUNAL DELHI (DELHI BENCH ‘B’ NEW DELHI BEFORE SHRI YOGESH KUMAR U.S., JUDICIAL MEMBER AND SHRI AVDHESH KUMAR MISHRA, ACCOUNTANT MEMBER ITA No. 1440/Del/2024 (A.Y. 2010-11) ITA No. 1438/Del/2024 (A.Y. 2010-11) Gulshan Tyagi Flat No. 3/651, Ground Floor, Shakti Khand-3, Indirapuram, Ghaziabad, Uttar Pradesh PAN: AHAPT9049F Vs. Income Tax Officer, Ward 1(2), CGO Complex, Old Hapur Chungi, Ghaziabad, Uttar Pradesh Appellant Respondent Assessee by None Revenue by Sh. Rajesh Kumar Dhanesta, Sr. DR Date of Hearing 22/01/2025 Date of Pronouncement 29/01/2025 ORDER PER YOGESH KUMAR, U.S. JM: The above two captioned appeals are filed by the Assessee against the orders of the CIT(A)/National Faceless Appeal Centre, Delhi [(‘NFAC’) for short] dated 31/01/2024 for the Assessment Year 2010-11. 2 ITA Nos. 1440/Del/2024 & 1438/Del/2024 Gulshan Tyagi Vs. ITO 2. The Grounds of Appeal are as under: - ITA No. 1440/Del/2024 (A.Y. 2010-11) “ The Grounds of appeal are enumerated hereunder, which are without prejudice to one-another :- 1. That on the facts and in the circumstances of the case and in law, Ld. CIT(A), National Faceless Appeal Centre (NFAC) erred in treating the appeal as inadmissible on the alleged delay in filing of appeal; whereas factually there is no delay counting from the date of actual receipt of order by-appellant as verifiable from-records and thus-appeal- deserves admission and adjudication as per law. 2. That the Ld. CIT(A), NFAC erred in not considering the written submissions along with supporting documents furnished on records by appellant through on-line appellate proceedings available and verifiable from records and has passed impugned order without taking into accounts the documents on records, which proves that there was no escapement of any income in the hand of assessee and thus the impugned order is bad in law as well as against the principle of natural justice. 3. That the orders passed by Ld. AO is bad in law since notice u/s 148 was not served on appellant in accordance with law and without service, Ld AO cannot assume valid jurisdiction to pass order u/s 144/147, accordingly notice issued u/s 148 and all subsequent proceedings including order of Ld AO are void ab initio. 4. That the Ld AO erred in law invoking the provisions of section 147 in most arbitrary and mechanical manner, solely based on NMS/AIR Information, without recording any valid reason to believe and a mere fact of purchase of a property does not tantamount to any escapement of income and thus there was no formation of belief, which is a condition precedent to initiate section 146 and therefore entre proceedings are without jurisdiction and non-est. 5. That the Ld AO erred in law invoking the provisions of section 147, because notice us148 dated 31.03.2017 suffers from irreparable legal infirmity as the same was not issued with the prior approval of specified authority, as evident from body of suen order, which is a condition precedent to initiate section 148 and therefore entire proceedings are without jurisdiction and non-est and are without jurisdiction 3 ITA Nos. 1440/Del/2024 & 1438/Del/2024 Gulshan Tyagi Vs. ITO 6. That on facts and circumstances of the case. Ld AO erred in making ex-parte assessment u/s 144 without service of any notice upon the assessee u/s 143(2) and thus the impugned assessment is without jurisdiction and legally untenable and is liable to be quashed. 7. That on facts and circumstances of the case, Ld AO erred in making ex-parte assessment u/s 144 without service of any notice upon the assessee and without giving any opportunity of being heard and thus the impugned assessment is contrary to the provisions of law as well as against the principles of natural justice and is liable to be quashed. 8. Without prejudice to the above ground, on the facts, merits and circumstances of the case and in law, the Id. AO erred in assessing the impugned sum of Rs. 52,33,000 as alleged income of the assessee, which is absolutely arbitrary, unwarranted, unlawful, unjustified and without any findings or placing any evidence against the assessee, onus whereof was on Id.AO being assessment u/s 147 and other details mentioned by the Id. AO in impugned order are factually incorrect and have no relevancy to the facts and circumstances of the case of the Assessee and thus the impugned order is liable to be quashed.” 9. That on facts and or circumstances of the case. Ld. AD erred in making ex-parte assessment by treating the value of purchase of immovable property of Rs 52.33.000 as unexplained investment of the appellant, without considering the fact that the appellant is house-wife not having any taxable income and living with his NRI husband settled outside India since long and payments towards such property were made by husband from his NRE/NRO accounts in India and thus source of such purchase is fully verifiable, genuine, legitimate and deserve acceptance. 10. The interest as levied by the Id. AO under section 234A and 2348 is unwarranted as the same is levied without any discussion or pointing out the facts and circumstances of the case which entailed levy of such interest as per the law and the same therefore is liable to be omitted. 11- That all the above grounds are independent grounds, which are without prejudice to one another 12 The Appellant reserves its right to add, amend, modify, substitute, supplement, delete. alter, emphasize, withdraw or not to press any ground of appeal at any time during the course of appellate proceedings. 4 ITA Nos. 1440/Del/2024 & 1438/Del/2024 Gulshan Tyagi Vs. ITO ITA No. 1438/Del/2024 (A.Y. 2010-11) “The Grounds of appeal are enumerated hereunder, which are without prejudice to one-another:- 1. That on the facts and in the circumstances of the case and in law. Ld. CIT(A), National Faceless Appeal Centre (NFAC) erred in treating the appeal as inadmissible on the alleged delay in filing of appeal; whereas factually there is no delay, counting from the date of actual receipt of order by appellant as verifiable from records and thus appeal deserves admission and adjudication as per law. 2. That the Ld. CIT(A), NFAC erred in not considering the written submissions along with supporting documents furnished on records by appellant through on-line appellate proceedings in quantum appeal available and verifiable from records and has passed impugned order without taking into accounts the documents on records, which proves that there was no escapement of any income in the hand of assessee and thus require no penalty and thereby the impugned order is bad in law as well as against the principle of natural justice. 3. That on the facts and in the circumstances of the case and in law, the impugned penalty order passed under section 271(1)(c) is unlawful and void ab-initio; because it does not contain any specific allegation and the same merely narrates that either the assessee has concealed the income or had furnished inaccurate particulars of income, which is in violation of specific provisions of section 274 and in view of the settled legal position in this regard, the impugned order is void ab- initio and is liable to be quashed. 4. That on the facts and in the circumstances of the case and in law, the impugned penalty order passed under section 271(1)(c) is unlawful, unwarranted, unjustified and void ab-initio, because the same is passed Ex-Parte without giving any lota of any opportunity of being heard to the Assessee, which is in violation of specific provisions of section 274 and various observation given within the body of the impugned order are either factually incorrect or irrelevant and the impugned order being against the specific provisions of law, is liable to be quashed. 5. That the impugned penalty as levied is absolutely unwarranted, arbitrary and without any basis and allegations made therein are factually incorrect and without any basis; as the assessee has neither concealed any income nor had furnished any inaccurate particulars of income and the impugned additions in quantum assessment were made in mechanical manner and on arbitrary basis without any iota of any actual facts and findings, which are 5 ITA Nos. 1440/Del/2024 & 1438/Del/2024 Gulshan Tyagi Vs. ITO made the sole basis of levy of impugned penalty, which is unjustified, unlawful, against the rudimentary principles of contemporary jurisprudence and against the settled legal position and therefore the impugned penalty is liable to be deleted. 6. That the impugned penalty as levied is unlawful, unwarranted and uncalled for, as matter in quantum assessment has not yet attained finality and is sub-judiced before the Hon'ble Income Tax Appellate Tribunal and therefore the impugned order deserved to be kept aside. 7. That on the facts and in the circumstances of the case and in law, the impugned penalty of Rs. 15,15,030 as levied is absolutely unlawful and without jurisdiction, because the quantum assessment made in this case was without authority of law and without jurisdiction, because the same was initiated on mere NMS/AIR information without any formation of belief and without serving any notice u/s 148 and without issuing any notice u/s 143(2) and thus without jurisdiction rendering it non-est and thereby the impugned penalty imposed in pursuance thereof is also null and void and untenable in law and is liable to be quashed. 8. That on the facts and in the circumstances of the case, the impugned penalty of Rs. 15,15,030 as levied is absolutely unwarranted, arbitrary and without any iota of any basis or findings by the Id. AO, for which onus was absolutely on him, and the allegations made therein are factually incorrect and without any basis; as the assessee did not have any taxable income for the under reference year and thereby has not concealed any income nor had furnished any inaccurate particulars of income, as evident from documentary evidences and the impugned penalty as imposed therefore is liable to be deleted. 9. That on facts and circumstances of the case, Ld AO erred in making ex-parte assessment u/s 271(1)(c) without service of any notice upon the assessee and without giving any opportunity of being heard and thus the impugned assessment is contrary to the provisions of law as well as against the principles of natural justice and is liable to be quashed. 10. That on facts and circumstances of the case, Ld. AO erred in making ex-parte penalty order imposing penalty of Rs. 15,15,030/-; by treating the value of purchase of immovable property of Rs 52,33,000 as unexplained investment of the appellant, without considering the fact that the appellant is house-wife not having any taxable income and living with his NRI husband settled outside India since long and payments towards such property were made by husband from his NRE/NRO accounts in India and thus source of 6 ITA Nos. 1440/Del/2024 & 1438/Del/2024 Gulshan Tyagi Vs. ITO such purchase is fully verifiable, genuine, legitimate and deserve acceptance 11. Without prejudice to all above, on the facts and in the circumstances of the case and in law, the impugned penalty imposed by Id. AO is arbitrary, unwarranted, unjustified and against the rudimentary principles of contemporary jurisprudence. because the same is imposed mechanically in an automatic manner without any iota of any adverse findings or facts and therefore such impugned penalty is liable to be deleted. 12.That all the above grounds are independent grounds, which are without prejudice to one another. 13.The Appellant reserves its right to add, amend, modify, substitute, supplement, delete, alter, emphasize, withdraw or not to press any ground of appeal at any time during the course of appellate proceedings.” 3. Brief facts of the case are that; an assessment order came to be passed u/s 144 read with Section 147 of the Income Tax Act, 1961 (‘Act’ for short) on 12/10/2017 by making addition of Rs. 52,33,000/- on account of unexplained investment u/s 69 of the Act. Pursuant to the said assessment order, an order of penalty came to be passed on 18/04/2018 u/s 271 (1)(c) of the Act. Aggrieved by the assessment order as well as order of penalty, the Assessee preferred Appeals before the Ld. CIT(A). The Ld. CIT(A) dismissed the Appeals filed by the Assessee on the delay in latches as there was delay of 663 and 487 days in filing the respective Appeals. Aggrieved by the orders of the Ld. CIT(A) dated 31/01/2024, the Assessee preferred the present Appeals on the grounds mentioned above. 7 ITA Nos. 1440/Del/2024 & 1438/Del/2024 Gulshan Tyagi Vs. ITO 4. The Advocate on record has not appeared due to certain health issues, however, an application for adjournment has been sent through Representative of the Ld. AR requesting to re-fix the hearing of the Appeals on any other convenience days. 5. The Ld. Departmental Representative fairly submitted that, the first Appeals have been dismissed by the Ld. CIT(A) on the delay in latches as the Assessee has not made any submission for condoning the delay in filing the Appeals, therefore, submitted that the Appeal may be restored to the file of the Ld. CIT(A) for deciding afresh. 6. Considering the issue involved in the Appeal and also in view of the submission of the Ld. Departmental Representative, we reject the request of Ld. Assessee's Representative for adjournment. 7. We have heard the Ld. Departmental Representative and perused the material available on record. In both the above Appeals, as per the impugned order of the Ld. CIT(A), there was delay of 663 and 487 days respectively in filing the Appeals and as per the CIT(A), the Assessee has not given any reason for the delay in filing the Appeals. On the other hand, in the Ground No. 1 of the Assessee’s Appeals, the Assessee contended that there is no delay in filing the Appeal if the date of actual receipt of the order by the Assessee is considered. In our opinion, if the 8 ITA Nos. 1440/Del/2024 & 1438/Del/2024 Gulshan Tyagi Vs. ITO Appeal is filed beyond the date of limitation prescribed in the Act, it is for the Assessee to demonstrate before the Ld. CIT(A) by way of filing an application for condonation of delay explaining the cause for delay and request for condoning the delay in filing the Appeal, when there is in ordinate delays of 663 and 487 days respectively in filing the Appeals before the Ld. CIT(A), the Assessee cannot become a mute spectator and expect the Ld. CIT(A) to condone the delay in the absence of any application or submission for condonation of delay. Considering the above facts and circumstances, we deem it fit to restore the respective Appeals to the file of the Ld. CIT(A) with a direction to the Assessee to file a proper application for condonation of delay by demonstrating the sufficient cause for such delay. The Ld. CIT(A) is also directed to provide opportunity of being heard to the Assessee and decide the such Applications filed by the Assessee and decide the Appeals afresh in accordance with law. Accordingly, we partly allow the Ground No. 1 of the Assessee in both the Appeals. 8. Since we have remanded the matter to the file of the Ld. CIT(A), the other Grounds of Appeal on the merit requires no adjudication. 9 ITA Nos. 1440/Del/2024 & 1438/Del/2024 Gulshan Tyagi Vs. ITO 9. In the result, the Appeal filed by the Assessee in ITA Nos. 1440/Del/2024 and 1438/Del/2024 are partly allowed for statistical purpose. Order pronounced in the open court on 29th January, 2025 Sd/- Sd/- (AVDHESH KUMAR MISHRA) (YOGESH KUMAR U.S.) ACCOUNTANT MEMBER JUDICIAL MEMBER Date:- 29 .01.2025 R.N, Sr.P.S* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI "