Parveen , Panipat V. ITO Ward-3, Panipat

ITA 1134/DEL/2022

AI Insights

The case involves Shri Parveen, the proprietor of M/s. Naveen General Store, who appealed against the order of the Commissioner of Income Tax (Appeals), Karnal, for the assessment year 2016-17. The primary contention was the procedural irregularity in the assessment order passed by the Income Tax Officer, which was claimed to be void ab initio for not complying with Section 144C of the Income Tax Act, 1961. Additionally, the assessee challenged the additions made to his income, which were alleged to be arbitrary and unsubstantiated. The initial appeal was dismissed by the CIT (Appeals) for non-prosecution, which the assessee attributed to the negligence of his previous Chartered Accountant. The Income Tax Appellate Tribunal (ITAT) found merit in the assessee's reasons for the delay in filing the appeal and restored the case to the CIT (Appeals) for a decision on the merits.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 113132 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 08-01-2023
• Assessment Year: 2016-2017
• Appeal Filed On: 22-05-2022
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 143(3); 144C

Judgement Text

I.T.A. No. 1134/Del/2022 1 IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH “S.M.C.” : DELHI ] BEFORE SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER, S.M.C. आ.अ.सं./I.T.A No. 1134/Del/2022 िनधाᭅरणवषᭅ/ Assessment Year: 2016-17 Shri Parveen, Prop. M/s. Naveen General Store, Near Model Town, Samalkha, Panipat, Haryana – 132 001. बनाम Vs. Income Tax Officer, Ward : 3, Panipat. PAN No. AULPP6580B अपीलाथᱮ / Appellant ᮧ᭜यथᱮ / Respondent िनधाᭅᳯरतीकᳱओरसे /Assessee by : Shri Jagdish Dhamija; C. A.; राज᭭वकᳱओरसे / Department by : Shri Ramdha Meena, D. R.; सुनवाईकᳱतारीख/ Date of hearing : 09/01/2023 उ᳃ोषणाकᳱतारीख/Pronouncement on : 28/02/2023 आदेश / O R D E R PER C. N. PRASAD, J. M. : 1. This appeal is filed by the assessee against the order of the ld. Commissioner of Income Tax (Appeals) [hereinafter referred I.T.A. No. 1134/Del/2022 2 to CIT (Appeals)] Karnal, dated 19.12.2019 for assessment year 2016-17. 2. The assessee has raised the following substantive ground of appeal :- “1. Assessment Order passed by the learned AO is void-ab-initio as the learned AO has given assessment order and demand notice without forwarding a draft of the proposed order of assessment in compliance of Section 144C of the Income Tax Act, 1961. 2. The order of the learned AO in making addition of Rs.10,14,037/- on account of his assumption that the assessee must have made payment to the broker atleast to the extent of Rs.5,14,037/- from his undisclosed sources and addition of Rs.5,00,000 on account of margin money paid to the broker from undisclosed sources of the assessee is highly arbitrary, illegal, void and uncalled for. The learned AO has not considered the evidence of retained profit of A.Y. 2015-16. Appeal was made to CIT (A) against the order of Ld. AO but due to negligence of appellant’s CA has not attended a single hearing. Appellant was also not aware about that fact. Now appellant came to know about his demand notice that due to negligence of his previous hired CA his appeal has been dismissed. In the light of facts and circumstances of the case, I request you to please allow this appeal and consider the facts. Detail grounds are attached.” 3. The ld. Counsel at the outset submits that the appeal was disposed of by the ld. CIT (Appeals) ex-parte dismissing the appeal of the assessee. 4. On hearing both the parties and perusing the order of the ld. CIT (Appeals) it is noticed that the ld. CIT (Appeals) dismissed the appeal of the assessee for non-prosecution. The ld. CIT (Appeals) I.T.A. No. 1134/Del/2022 3 has not gone into the merits of the disallowances/additions made in the assessment order. 5. The ld. Counsel for the assessee submits that the appeal before the Tribunal is filed by the assessee with delay of 810 days and the assessee has filed petition for condonation of delay along with an affidavit explaining the delay. The ld. Counsel submits that for the reasons stated in the affidavit the delay may be condoned. It is observed that the appeal is filed with a delay of 810 days and the reasons for filing the appeal with delay is stated as under:- “1. That my case was selected for scrutiny for A.Y. 2016-17 and my C.A. defended this case before Income Tax Officer, Ward-3, Panipat. 2. That the learned A.O. has given an assessment order for the assessment year 2016-17 under section 143(3) of the Income Tax Act 1961 on Date 12.12.2018. 3. That as per the said intimation I found that my returned income has been enhanced by Rs. 10,14,038 and a consequential demand of Rs.1,87,618 has been made against me. 4. That I was advised by my Chartered Accountants that the said assessment is factually incorrect and an appeal against this shall be filed before CIT(A), Karnal. 5. That my Chartered Accountants filed the appeal before CIT(A) on] 8.01.2019 but never appeared in any hearing before CIT(A) because of which CIT(A) has dismissed my appeal. 6. That my Chartered Accountants never told me about dismissal of appeal by CIT(A). 7. That I come to know about dismissal of appeal before CIT(A) and notice of demand on 11.03.2022, when I have taken opinion of another C. A.. on my present case. I.T.A. No. 1134/Del/2022 4 8. That I was advised by the new hired Chartered Accountants to file an appeal before the Hon'ble ITAT, Delhi for relief but the appeal has already become barred by time limitation. Nevertheless, the appeal was filed before this Hon’ble ITAT, Delhi accompanies by an application for condonation of delay. 9. That delay in filing the appeal is because of a genuine reason i.e. breach of trust by my Chartered Accountants. 10. That I had no intention to jeopardize the interest of the revenue by the filing of the appeal.” 6. It is noticed that the appeal of the assessee was dismissed by the ld. CIT (Appeals) by order dated 19.12.2019 for non-prosecution and the due date for filing the appeal before the Tribunal was 19.02.2020. In the affidavit the assessee stated that the fact that the appeal was dismissed by the ld. CIT (Appeals) was not brought to the notice of the assessee and immediately thereafter in the month of March Covid-19 spread across the country. There was complete lock-down for a very long period and there was no communication from the Chartered Accountants recording the status in his case. It is an averment of the assessee that he came to know the dismissal of the appeal when he received the demand notice on 11.02.2022 and immediately took steps for filing the appeal on consulting with newly hired Chartered Accountant to file the appeal before the Tribunal and the appeal was filed on 23.05.2022 with delay of 810 days. On going through the affidavit and the petition for condonation of delay it is observed that the assessee was prevented with a reasonable cause for not filing the appeal in time. Thus, delay in filing the appeal before the Tribunal is hereby condoned. I.T.A. No. 1134/Del/2022 5 7. Coming to the merits of the case it is observed that the appeal of the assessee was dismissed ex-parte by the ld. CIT (Appeals) without deciding the appeal on merits and for non- prosecution by the assessee. For the reasons explained by the assessee in the affidavit, I am of the view that this appeal is to be decided on merits by the ld. CIT (Appeals) after providing adequate opportunity of being heard to the assessee. Therefore, taking the totality of facts into consideration this appeal is restored to the file of the ld. CIT (Appeals) who shall decide the appeal on merits in accordance with law after providing adequate opportunity of being heard to the assessee. 8. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on : 28/02/2023. Sd/- ( C. N. PRASAD ) JUDICIAL MEMBER Dated : 28/02/2023. *MEHTA* Copy forwarded to :- 1. Appellant; 2. Respondent; 3. CIT 4. CIT (Appeals) I.T.A. No. 1134/Del/2022 6 5. DR: ITAT ASSISTANT REGISTRAR ITAT, New Delhi. Date of dictation 21.02.2023 Date on which the typed draft is placed before the dictating member 24.02.2023 Date on which the typed draft is placed before the other member 28.02.2023 Date on which the approved draft comes to the Sr. PS/ PS 28.02.2023 Date on which the fair order is placed before the dictating member for pronouncement 28.02.2023 Date on which the fair order comes back to the Sr. PS/ PS 28.02.2023 Date on which the final order is uploaded on the website of ITAT 28.02.2023 Date on which the file goes to the Bench Clerk 28.02.2023 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