Shri Honnappa Javereggowda, Tumkur V. Income Tax Officer, Ward-3(2)(3), Bangalore

ITA 1069/BANG/2022

AI Insights

The case involves Honnappa Javereggowda, the appellant, contesting an order from the CIT(A) which dismissed his appeal as time-barred by 649 days. The original assessment for AY 2017-18 was completed under section 144 of the Income-tax Act, 1961, estimating income at 8% of turnover due to non-compliance with notices. The CIT(A) dismissed the appeal without considering the merits, citing the delay in filing the appeal. The appellant argued that the delay was due to reasonable cause and sought a personal hearing, which was not granted. The Tribunal considered the impact of the Supreme Court's extension of limitation periods due to the pandemic and decided to remand the case back to the CIT(A) for a fresh evaluation.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 129227 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 24-01-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 22-11-2022
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Period of limitation; Time period of passing order
• Section: 144; 142(1); 12A; 250

Judgement Text

ITA No.1069/Bang/2022 Honnappa Javereggowda, Tumkur IN THE INCOME TAX APPELLATE TRIBUNAL “A’’ BENCH: BANGALORE SHRI GEORGE GEORGE K., JUDICIAL MEMBER AND MS. PADMAVATHY S., ACCOUNTANT MEMBER ITA No.1069/Bang/2022 Assessment Year: 2017-18 Honnappa Javereggowda Dabbegatta Haballi Turuvekere Taluk Karadigere Tumkur 572 221 Karnataka PAN NO : ABUPJ4862E Vs. CIT(A), NFAC Delhi APPELLANT RESPONDENT Appellant by : Smt. Geetha Rani, A.R. Respondent by : Shri K.N. Suresh Babu, D.R. Date of Hearing : 25.01.2023 Date of Pronouncement : 30.01.2023 ORDER PER GEORGE GEORGE K., JUDICIAL MEMBER This appeal at the instance of assessee is directed against order of CIT(A) dated 26.9.2022. The relevant assessment is 2017-18. 2. The grounds raised in the appeal are as follows: 1. “The order of Honourable Commissioner of Income Tax (Appeals), NFAC (hereinafter referred as "CIT(A)" for brevity) to the extent prejudicial to the Appellant is bad in law. ITA No.1069/Bang/2022 Honnappa Javereggowda, Tumkur Page 2 of 6 2. The CIT(A) has erred in not condoning the delay in filing the appeal without appreciating that the Appellant had reasonable cause and the same was demonstrated. The CIT(A) has given weightage to technical considerations over the substance of the case leading to injustice. 3. On facts and circumstances of the case and in law, CIT(A) has grossly erred in passing the order under section 250 of Income- tax Act, 1961 without even affording a personal hearing to the Appellant to present its case. 4. . The CIT(A) has erred in not adjudicating the issue related to adoption turnover despite the fact that the Appellant has incurred loss of Rs.15,28,055/-. 5. The Appellant submits that each of the above grounds/ sub- grounds are independent and without prejudice to one another. 6. The Appellant craves leave to add, alter, vary, omit, substitute or amend the above grounds of appeal, at any time before or at, the time of hearing, of the appeal, so as to enable the Income- tax Appellate Tribunal to decide the appeal according to law.” 3. Brief fact of the case are that assessee is an individual. For AY 2017-189, return of income was filed on 5.9.2017, declaring loss of Rs.12,25,594/-. The assessment was selected for scrutiny and notice dated 11.8.2018 was duly served on assessee. Since there was no compliance to the various notices issued u/s 142(1) of the Income- tax Act,1961 ['the Act' for short], the assessment was completed u/s 144 of the Act. In best judgement assessment completed, income was estimated at 8% of the turnover. Accordingly, the total income was computed at Rs.2,92,73,807/- instead of loss of Rs.12,25,594/- declared in the return of income. 4. Aggrieved by the assessment order completed u/s 144 of the Act, assessee filed appeal before the first appellate authority. The ld. CIT(A) dismissed the appeal in limine by noting that appeal filed before him is time barred by 649 days. ITA No.1069/Bang/2022 Honnappa Javereggowda, Tumkur Page 3 of 6 5. Aggrieved by the order of the ld. CIT(A), the assessee has filed the present appeal before this Tribunal. The ld. A.R. relied on the grounds raised. 6. The ld. D.R. supported the order of the ld. CIT(A). 7. We have heard the rival submissions and perused the materials available on record. In Misc. Application No. 665/2021 in Suo motu Writ Petition (Civil) No. 3 of 2020, in Re: Cognizance for Extension of Limitation, the Hon'ble Supreme Court on 27th March, 2021 decided to extend the period of limitation of filing cases in various legal fora with effect from 14.03.2021 until further orders in view of hardships faced by litigants due to the alarming Covid-19 situation. It was directed vide order dated 23rd March, 2020 that the period of limitation in filing petitions/ applications/ suits/ appeals/ all other proceedings, irrespective of the period of limitation prescribed under the general or special laws, shall stand extended with effect from 15th March, 2020 till further orders. Thereafter, on 8th March, 2021 it was noticed that the country is returning to normalcy and since all the Courts and Tribunals have started functioning either physically or by virtual mode, extension of limitation was regulated and brought to an end. Finally, in computing the period of limitation for any suit, appeal, application or proceeding irrespective of the limitation prescribed under the General law or Special Laws, whether condonable or not, the period from 15.03.2020 to 14.03.2021 shall stand excluded. The Hon'ble Supreme Court on 27th March, 2021 has restored the order dated 23rd March, 2020 and in continuation of the order dated 8th March, 2021 direct that the period(s) of limitation, as prescribed under ITA No.1069/Bang/2022 Honnappa Javereggowda, Tumkur Page 4 of 6 any general or special laws in respect of all judicial or quasi- judicial proceedings, whether condonable or not, shall stand extended till further orders. The Apex Court acceding to the request made by SCAORA passed an order on 27 April 2021 restoring the extension of the period of limitation until further orders. In September 2021, the Election Commission of India-filed an application seeking modification of the order extending limitation with respect to election petitions raising concerns on the difficulty of preserving EVMs and election papers indefinitely. The Apex Court on 9 September 2021 held that it would consider recalling the suo motu order with respect to all cases, and not just the election petitions. Accordingly, the Apex Court on 23 September 2021 recalled the limitation extension w.e.f. 2 October 2021. However, the Apex Court was mindful in stating that the recall order was subject to the uncertainties pertaining to the third wave of Covid-19 pandemic. As India witnessed a sharp rise in the Covid-19 cases in January 2022, the Hon'ble Supreme Court decided to restore the limitation extension. As per the order of the Apex Court dated 10 January 2022, the period from 15 March 2020 to 28 February 2022 would stand excluded for the purpose of limitation. The Hon'ble Supreme Court of India passed the following directions while deciding a miscellaneous application filed by the SCAORA: “The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01 .03.2022. ITA No.1069/Bang/2022 Honnappa Javereggowda, Tumkur Page 5 of 6 In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, the longer period shall apply. It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Section 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.” 7.1 In the instant case, the impugned assessment order passed u/s 144 of the Income-tax Act,1961 ['the Act' for short] was admittedly received by the assessee on 13.12.2019 (i.e. same date of the order). Hence, the assessee was required to file the appeal by 12.01.2020. But the same was filed only on 23.10.2021. However, since the Hon’ble Supreme Court has excluded the period of limitation from 15.3.2020 till 28.02.2022, the delay in filing the appeal before the ld. CIT(A) is only from 12.01.2020 to 15.03.2020. We notice that the assessee has not been cooperating with the department and the assessment order has been passed u/s 144 of the Act. Even before the ld. CIT(A), the assessee has been seeking adjournment frequently and we strongly deprecate the attitude of the assessee. However, in the interest of justice and equity, we are of the view that one more opportunity should be provided to the assessee to present his facts before the ld. CIT(A). Accordingly, the issue that is raised before the Tribunal is restored to the file of ld. CIT(A) for de-novo consideration. The assessee shall cooperate with the department and shall not seek unnecessary adjournments. The ITA No.1069/Bang/2022 Honnappa Javereggowda, Tumkur Page 6 of 6 assessee shall provide necessary proof why the appeal has been filed belatedly before the first appellate authority. The ld. CIT(A) is directed to afford a reasonable opportunity to the assessee. It is ordered accordingly. 8. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 30 th Jan, 2023 Sd/- (Padmavathy S.) Accountant Member Sd/- (George George K.) Judicial Member Bangalore, Dated 30 th Jan, 2023. VG/SPS Copy to: 1. The Applicant 2. The Respondent 3. The CIT 4. The CIT(A) 5. The DR, ITAT, Bangalore. 6. Guard file By order Asst. Registrar, ITAT, Bangalore.