Umesh Kankani, Kolkata V. PCIT-2, Kolkata

ITA 121/KOL/2022

AI Insights

The case involves Umesh Kankani, the appellant, who appealed against the order of the Commissioner of Income Tax dated 23.03.2020, which set aside the original assessment order and directed a de novo assessment. The Commissioner had concerns regarding the assessee's claim of long-term capital gain from penny stocks and a liability shown from ICICI Bank, which were not adequately examined by the Assessing Officer. The appellant contested the order, claiming it was passed without a proper opportunity of hearing and during the COVID period, thus ex-parte. However, the Tribunal found that the subsequent order by the Assessing Officer did not alter the income declared by the assessee, leading to the dismissal of the appeal.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 129000 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 06-02-2023
• Assessment Year: 2015-2016
• Appeal Filed On: 27-02-2022
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 263; 143(3)

Judgement Text

ITA No. 121/KOL/2022 Assessment Year: 2015-2016 Umesh Kankani 1 IN THE INCOME TAX APPELLATE TRIBUNAL, ‘B’ BENCH, KOLKATA Before Shri Rajpal Yadav, Vice-President (KZ) & Dr. Manish Borad, Accountant Member I.T.A. No. 121/KOL/2022 Assessment Year: 2015-2016 Umesh Kankani,........................................Appellant 5, Kiran Shankar Roy Road, Kolkata-700001 [PAN: AKMPK8942R] -Vs.- Principal Commissioner of Income Tax-2,..Respondent Kolkata, Aayakar Bhawan, P-7, Chowringhee Square, Kolkata-700069 Appearances by: N o n e, appeared on behalf of the assessee Shri Sudipta Guha, CIT (DR), appeared on behalf of the Revenue Date of concluding the hearing : February 07, 2023 Date of pronouncing the order : 9 th February, 2023 O R D E R Per Rajpal Yadav, Vice-President (KZ):- The assessee is in appeal before the Tribunal against the order of ld. Commissioner of Income Tax dated 23.03.2020, which has wrongly been mentioned as 11.05.2020 in the Title of the impugned order. 2. The Registry has pointed out that appeal is time-barred by 598 days. However, we find that all these days are of COVID period and in view of the ITA No. 121/KOL/2022 Assessment Year: 2015-2016 Umesh Kankani 2 Hon’ble Supreme Court’s direction, it is not to be counted. The appeal has been presented in the Tribunal on 28.02.2022. 3. In response to the notice of hearing, no one has come present on behalf of the assessee. With the assistance of ld. CIT(DR), we have gone through the record carefully. It emerges out from the record that assessee has filed his return of income on 05.11.2015 declaring total income of Rs.2,58,190/-. The ld. Assessing Officer has passed an assessment order under section 143(3) on 16.08.2017. He accepted the returned income. 4. The ld. Commissioner took cognizance under section 263 of the Income Tax Act on the ground that assessee had made a claim of long-term capital gain amounting to Rs.23.25 lacs and claimed it as exempt. According to the ld. CIT, it was a claim based on Penny Stock and ought to have been examined by the ld. Assessing Officer. Similarly the assessee has shown a liability of Rs.1.05 crore from the ICICI Bank. This aspect was also not enquired. Accordingly he set aside the assessment order dated 16.08.2017 and directed the ld. Assessing Officer to pass a denovo assessment. 5. The assessee was aggrieved with this 263 order dated 23.03.2020 passed in A.Y. 2015-16. One of the grievances of the assessee is that such an order has been passed without providing due opportunity of hearing to the assessee. It has also been pleaded that this order was passed during the COVID period and which is an ex-parte order. 6. While going through the record, we find order giving effect passed by the ld. Assessing Officer on 26.02.2021. This order reads as under:- ITA No. 121/KOL/2022 Assessment Year: 2015-2016 Umesh Kankani 3 ITA No. 121/KOL/2022 Assessment Year: 2015-2016 Umesh Kankani 4 7. No doubt we are not required to take cognizance of this order because we are supposed to examine the impugned order dated 23.03.2020 passed under section 263. The scope of enquiry would be whether this order is sustainable or not, but after perusing the consequential order, we are of the view that our enquiry would be an academic only, because in the ultimate result, there is no variation in the income of the assessee. While giving effect to this order, ld. Assessing Officer has not made any addition. He again accepted the returned income. In this development, we do not deem it necessary to devote energy on an academic exercise whether 263 order was passed rightly or not. 8. In the result, the appeal of the assessee is dismissed for statistical purposes. Order pronounced in the open Court on 9 th February, 2023. Sd/- Sd/- (Manish Borad) (Rajpal Yadav) Accountant Member Vice-President (KZ) Kolkata, the 9 th day of February, 2023 ITA No. 121/KOL/2022 Assessment Year: 2015-2016 Umesh Kankani 5 Copies to : (1) Umesh Kankani, 5, Kiran Shankar Roy Road, Kolkata-700001 (2) Principal Commissioner of Income Tax-2, Kolkata, Aayakar Bhawan, P-7, Chowringhee Square, Kolkata-700069 (3) Commissioner of Income Tax- ; (4) The Departmental Representative (5) Guard File TRUE COPY By order Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S.