LIYAKAT ALI, SITAPUR V. ITO, Sitapur, Sitapur

ITA 160/LKW/2022

AI Insights

The case involves an appeal by Shri Liyakat Ali against the order of the CIT(A) which dismissed his appeal ex-parte. The primary contention was the alleged non-compliance with procedural requirements in the issuance and service of notices under section 142(1) of the Income Tax Act, 1961, and the subsequent assessment order under section 144. The assessee argued that the notices were not properly served, and the assessment was made without providing him an opportunity to be heard, contrary to the directions of the Additional Commissioner of Income Tax. The ITAT found merit in the assessee's arguments and directed a fresh assessment.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 113235 (ITAT-LUCKNOW)
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Next Hearing Date: 10-05-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 22-08-2022
• Other Referred Cases: CIT Vs. Laxmi Das Khandelwal, PCIT Vs Maruti Suzuki India Ltd., PCIT Vs Param Dairy Ltd., Deva Singh Gur Bux Singh Vs CIT, NTPC Vs CIT
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARISH GIDWANI
• Keywords: Condonation of delay
• Section: 144; 142(1)

Judgement Text

I.T.A. No.160/Lkw/2022 Assessment year:2017-18 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH ‘SMC’, LUCKNOW BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER I.T.A. No.160/Lkw/2022 Assessment Year: 2017-18 Shri Liyakat Ali, Jai Hind Kirana Store, Laharpur Road, Hargaon, Sitapur. PAN:ARVPA0924D Vs. Income Tax Officer, Sitapur. (Appellant) (Respondent) O R D E R PER ANADEE NATH MISSHRA:A.M. (A) Appeal vide I.T.A. No.160/Lkw/2022 has been filed by the assessee for assessment year 2017-18 against impugned appellate order dated 24/11/2021 (DIN & Order No.ITBA/NFAC/S/250/2021-22/1037204289(1) of Commissioner of Income Tax (Appeals) [“CIT(A)” for short]. The grounds of appeal are as under: “1. Whether the directions issued by the Additional Commissioner of Income Tax are not binding on the assessing officer since in the case of assessee directions issued by the Additional Appellants by Shri Liyakat Ali (assessee in person) Respondent by Shri Harish Gidwani, D.R. Date of hearing 11/05/2023 Date of pronouncement 12/05/2023 I.T.A. No.160/Lkw/2022 Assessment year:2017-18 2 Commissioner of Income Tax on 10.12.2019 has not been followed at all. 2. Weather the instructions and standard operational procedures (SOP) issued by the CBDT are not binding on the assessing officer while framing assessment order since in the case of assessee the learned assessing officer has disobeyed the instructions and standard operational procedures (SOP) issued by the CBDT from time to time. 3. Whether when the instructions and standard operational procedures (SOP) issued by the CBDT clearly says to issue notice u/s 142(1) of the Income Tax Act, 1961 shall be issued electronically as well as through postal authorities, whether the learned officer is correct to send notice only electronically and not through postal authorities. Instruction No.3 15.11.2017. 3(v). 4. Weather under fact and circumstances of case the notice u/s 142(1) mentioned in the assessment order by the learned sent through speed post, notice u/s 142(1) never served on the assessee. 5. Whether notice issued u/s 142(1) issued on 09.03.2018 is valid when instruction issued clearly says that process of service of notice should be completed by 31.12.2017. (SOP and Instruction dated 15.11.2017) 6. Whether the Additional Commissioner issue any directions u/s 144A prejudicial to the assessee without offering him opportunity of being heard to the assessee. 7. Whether when the directions issued on 10.12.2019 by the Additional Commissioner of Income Tax clearly says show cause notice may be issued for the proposed addition to the income after allowing sufficient time to the assessee to offer explanation for the proposed addition, the learned officer instead of following direction of the Additional Commissioner of Income Tax passed the assessment order on the same date and has not provided the opportunity to the assessee. Whether the assessing officer ignore the directions issued by the Additional Commissioner of Income Tax. 8. Weather under fact and circumstances of the case the information sought by the assessee from the department regarding address to which the notice was sent by speed post the department I.T.A. No.160/Lkw/2022 Assessment year:2017-18 3 could not give any reply leading to non service of notice and making false statement at Page 2, 6 of the Assessment Order. 9. Weather under fact and circumstances of the case the assessment order passed in the absence of any valid notice is invalid as per the ratio of judgment in the case of CIT Vs. Laxmi Das Khandelwal 13.08.2019 (2019) 180 DTR (SC) 318. 10. Whether by the and under Fact and circumstances of case the Assessing Officer was correct to mention that notice u/s 142(1) was sent by email when the return for Assessment Year 2017-18 was not filed by the Assessee hence there was no mention about email id to the department for the AY 2017-18 leading to non service of notice u/s 142 (1) before making assessment u/s 144. 11. Weather under fact and circumstances of the case the order passed by CIT (A) will be void against an invalid assessment order. An order passed against a non-existent order is void-ab-intio, as per ratio of judgment in case of PCIT Vs Maruti Suzuki India Ltd. (2019) 107Taxmann.com 375. 12. Weather under fact and circumstances of the case the notice sent by CIT(A) at the email:[e-mail] and cc to [e-mail] amount to service of notice as 1 st id [e-mail] pertain to my earlier discontinued counsel and no notice was received on the mail ID [e-mail] which was mentioned in the appeal memo form 35 for correspondence purpose . And email id [e-mail] has not been mentioned in the appeal memo. 13. Weather under fact and circumstances of the case the cash deposited in Bank is explained as the Business of the assessee in cash and it is duly recorded in the Books of Account as per ratio of judgment in case of PCIT Vs Param Dairy Ltd. (2021) 200 DTR (Del) 118. 14. Weather under fact and circumstances of the case the fresh evidence on merit can be filed before Hon'ble ITAT when the order is passed u/s 144 as per the ratio of judgment in the case of Deva Singh Gur Bux Singh Vs CIT 217 ITR 510 (Allahabad). I.T.A. No.160/Lkw/2022 Assessment year:2017-18 4 15. Weather under fact and circumstances of the case AO was correct to mention deposit Rs.10,27,500 as SBN whereas Bank has issued certificate that Rs.5,50,000 has been deposited as SBN (specified bank notes). 16. The Law Points have been taken as per the ratio of judgment in the case of NTPC 229 ITR 383 (SC). 17. Weather under fact and circumstances of the case as per the above grounds the assessment order and the order of CIT (A) are invalid.” (B) In this case, assessment order dated 10/12/2019 was passed u/s 144 of the Income Tax Act, 1961 (“IT Act” for short) whereby the assessee’s total income was determined at Rs.24,39,710/-. Aggrieved, the assessee filed appeal in the office of learned CIT(A). Vide impugned appellate order dated 24/11/2021, the learned CIT(A) dismissed the assessee’s appeal ex- parte qua the appellant assessee. The present appeal before us has been filed by the assessee against the aforesaid impugned order dated 24/11/2021 of learned CIT(A). (B.1) There is delay on the part of the appellant assessee in filing of this appeal in Income Tax Appellate Tribunal (“ITAT" for short). The assessee has prayed for condonation of delay on the ground that the impugned order of learned CIT(A) was neither served on the assessee through post nor served on the e-mail ID mentioned on the appeal memo in Form-35. In the affidavit filed by the assessee, he has further stated that he is not much literate and lives in village approximately 25 kms. away from Sitapur headquarter. I.T.A. No.160/Lkw/2022 Assessment year:2017-18 5 (B.1.1) At the time of hearing before us, the assessee was present in person and submitted that the delay in filing of the appeal was on account of the fact that the assessee was not aware that the impugned order had been passed by the learned CIT(A). He submitted that the delay in filing of the appeal should be condoned. (B.2) Learned Sr. Departmental Representative for the Revenue expressed no objection to the assessee’s request for condonation of delay in filing of this appeal. (B.2.1) In view of the foregoing and in the specific facts and circumstances of the present appeal before us, we condone the delay in filing of this appeal. (C) With regard to the various grounds of appeal in the present appeal before us, the assessee, who was present in person, submitted that he did not get any benefit of representation either before the Assessing Officer or before the learned CIT(A) because neither the Assessing Officer (during assessment proceedings) nor learned CIT(A) [during appellate proceedings in the office of CIT(A)] provided reasonable opportunity to the assessee to present his case. He further submitted that all the issues in the present appeal should be restored to the file of the Assessing Officer with the direction to provide reasonable opportunity to the assessee so that the assessee is able to present his case before the Assessing Officer. The learned Sr. Departmental Representative for the Revenue expressed no objection to the aforesaid submissions made by the assessee, present before us in person. In view of the foregoing and in the specific facts and circumstances of the present appeal, we set aside the impugned order of I.T.A. No.160/Lkw/2022 Assessment year:2017-18 6 learned CIT(A) and restore all the issues in dispute in the present appeal before us to the file of the Assessing Officer with the direction to pass a de novo assessment order in accordance with law after providing reasonable opportunity to the assessee. All the grounds of appeal are treated as disposed of in accordance with the aforesaid directions. (D) In the result, the appeal of the assessee stands partly allowed for statistical purposes. (Order pronounced in the open court on 12/05/2023) Sd/. Sd/. (SUDHANSHU SRIVASTAVA) (ANADEE NATH MISSHRA) Judicial Member Accountant Member Dated:12/05/2023 *Singh Copy of the order forwarded to : 1. The Appellant 2. The Respondent. 3. Concerned CIT 4. D.R., I.T.A.T., 5. CIT(A) Assistant Registrar