PARASURAM KESARI, VISAKHAPATNAM V. INCOME TAX OFFICER, WARD-5(4), VISAKHAPATNAM

ITA 189/VIZ/2023

• Counselvise Citation: [2023] 102 COUNSELVISE.COM (IT) 0138 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: DB
• Next Hearing Date: 13-09-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 06-07-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Difference of opinion; Change of opinion
• Section: 148; 271(1)(c); 40A(3); 143(3); 142(1); 234B; 250; 153

Judgement Text

आयकर अपीलȣयअͬधकरण, ͪवशाखापटणम पीठ, ͪवशाखापटणम IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM Įी दुåवूǽ आर एल रेɬडी, ÛयाǓयक सदèय एवं Įी एस बालाकृçणन, लेखा सदèय के सम¢ BEFORE SHRI DUVVURU RL REDDY, HON’BLE JUDICIAL MEMBER & SHRI S BALAKRISHNAN, HON’BLE ACCOUNTANT MEMBER आयकर अपील सं./ I.T.A. No.189/Viz/2023 (Ǔनधा[रण वष[ / Assessment Year : 2012-13) Mr. Parasuram Kesari, 26-1-1, NH-5, Chinna Gantyada, Old Gajuwaka, Visakhapatnam, Andhra Pradesh – 530026. PAN: AFUPK 0673 E Vs. Income Tax Officer, Ward-5(4), Visakhapatnam. (अपीलाथȸ/ Appellant) (Ĥ×यथȸ/ Respondent) अपीलाथȸ कȧ ओर से/ Assessee by : Sri C. Subrahmanyam, AR Ĥ×याथȸ कȧ ओर से / Revenue by : Sri Madhukar Aves, Sr. AR सुनवाई कȧ तारȣख / Date of Hearing : 14/09/2023 घोषणा कȧ तारȣख/Date of Pronouncement : 22/11/2023 O R D E R PER S. BALAKRISHNAN, Accountant Member : This appeal filed by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [NFAC] in DIN & Order No. ITBA/NFAC/S/250/2023-24/1054056988(1), dated 30/06/2023 2 for the AY 2012-13 arising out of the order passed U/s. 143(3) r.w.s 147 of the Income Tax Act, 1961 [the Act]. 2. Briefly stated the facts of the case are that the assessee is an individual engaged in transport business in the name and style of M/s. Mahendra Transport Agency. The assessee has filed his return of income for the AY 2012-13 on 25/09/2012 declaring a total income of Rs. 4,86,590/-. Subsequently, the case was scrutinized and an order U/s. 143(3) was passed on 28/02/2014 assessing the total income of the assessee at Rs. 5,89,190/-. Thereafter, as per the information available on record, the Ld. AO observed that the assessee has made cash payments exceeding the threshold limit as prescribed under the provisions of section 40A(3) of the Act aggregating to Rs. 56,57,210/- towards lorry hire charges. Therefore, the Ld. AO issued a notice U/s. 148 of the Act on 11/12/2015 which was served on 15/12/2015. In response, the assessee filed his revised return of income for the AY 2012-13 on 11/1/2016 declaring a total income of Rs. 5,89,187/-. Thereafter, the Ld. AO issued a notice U/s. 142(1) of the Act along with questionnaire and in reply the Authorized Representative of the assessee appeared from time to time before the Ld. AO and furnished the details and information as called 3 for by the Ld. AO. On verification of the details furnished by the assessee and also after discussing various issues with the assessee’s Authorized Representative, the Ld. AO completed the re-assessment proceedings U/s. 143(3) r.w.s 147 of the Act vide order dated 30/12/2016 wherein the Ld. AO made certain additions aggregating to Rs. 35,39,213/- and assessed the total income at Rs. 41,28,403/-. Aggrieved by the order of the Ld. AO, the assessee filed an appeal before the Ld. CIT(A) with a delay of 153 days. 3. Before the Ld. CIT (A) the assessee filed an affidavit with a request to condone the delay wherein it was explained that due to multiple health issues the assessee could not pursue his case with the Authorized Representative and therefore the appeal was filed with a delay of 153 days before the First Appellate Authority. However, the Ld. CIT(A) did not consider the submissions of the assessee with regard to condonation of delay and observed that the reasons explained by the assessee for belated filing of the appeal are vague even though it is not coupled with a malafide intention. Thus, Ld. CIT(A) rejected the condonation petition filed by the assessee and dismissed the appeal. Aggrieved by the order of the Ld. CIT(A), the assessee 4 filed the present appeal before us by raising the following grounds of appeal: “1. That under the facts and circumstances of the case, the orders passed U/s. 147 r.w.s 143(3) of the Act dated 30/12/2016 confirme d by CIT (A), NFAC dated 30/06/2023 is not in accordance with the provisions of law. 2. The Ld.CIT(A) ought to have condoned the delay of 153 days in filing the appeal, when the delay was explained with reasonable cause vide petition filed before the CIT(A) along with affidavit stating therein medical reasons. 3. The Ld. CIT(A) erred in observing that assessee failed to furnish evidence in suppor t of his case explaining the delay, which was due to medical reasons when in fac t a medical certificate was filed along with condonation petition, filed manually and also elec tronically. 4. The Ld. CIT(A) without considering the following grounds of appeal urged before him which he ought to have done so, disposed off the appeal upon which the assessee is aggrieved. “1. Disallowance of expenditure in excess of Rs. 35,000/- U/s. 40A(3) without considering the nature and practical difficulties of the business is no t valid in law. 2. The present reopened assessme nt framed pursuant to a notice issued U/s. 148 of the Act is illegal, arbitrary and without fulfillment of the conditions precedent for the issuance of the said no tice. 3. Reopening of assessment without replying to the objections filed is no t valid. 4. Reopening of assessment on the basis of change of opinion is bad in law. 5. Levy of interest U/s. 234B is no t warranted. 5 6. Addition being technical in nature, levy of penalty U/s. 271(1)(c) is not warranted. 7. The appellant craves leave to add, alter and amend the grounds as the occasion arises.” Apar t fro m the above the following are the other grounds of appeal raised before Ld. CIT(A). 1. The Ld. AO ought to have known that there was no assessment order existence to enable him to reopen the same by issue of notice U/s. 148 of the Act, dated 11/12/2015 because the original Assessment Order passed U/s. 143(3) of the Ac t dated 28/02/2014 by vir tue of the order passed U/s. 263 of the IT Ac t dated 27/11/2015 has got invalidated and has beco me non-existence under the law. In this scenario the very issue of no tice U/s. 148 of the Ac t dated 11/12/2015 is bad in law and the subsequent assessment there to beco mes null and void. 2. The Ld. AO instead of following the direc tions of the Ld. Pr. CIT by vir tue of order passed U/s. 263 of the Act dated 27/11/2015 wrongly assumed jurisdiction by issue of no tice U/s. 148 of the Act. 3. The Ld. AO has for med the reason to believe basin on the observations of the Ld. Pr. CIT in the order passed U/s. 263 of the Ac t when the statute conte mplates the AO to apply himself in forming his own belief with reasons of the inco me escaping assessment so much so his predecessor while completing the assessment U/s. 143(3) of the Ac t has examined the subjec t issue. 4. The Ld. AO is not correc t in making addition of Rs. 1,78,990/- by alleging that few par ties, on direct enquiry by the AO have denied to have made the transactions with the assessee which aspect was never put to the assessee for his rebuttal and which is also fac tually incorrec t. 5. The Ld. AO is not correc t in making addition of Rs. 7,23,323/- by alleging that few par ties on direct enquiry by the AO, have confir med certain amount as against the amount ac tually paid by the assessee which aspect was never put to the 6 assessee for his rebuttal and which is also fac tually incorrec t.” 5. For these and such other grounds that may be urged at the time of hearing of subjec t appeal the appellant prays that the orders of the Ld. CIT(A) passed U/s. 250 of the Act are to be set-aside in the interest of justice.” 4. At the outset, the Ld. Counsel for the assessee submitted that the reason for the delay of 153 days in filing the appeal before the Ld. CIT(A)-NFAC is due to ill health of the assessee. The Ld. AR drawn our attention the medical certificate and the affidavit filed by the assessee before the Ld. CIT (A)-NFAC and submitted that even though the assessee has furnished the medical certificate manually and electronically before the Ld. CIT(A)-NFAC along with an affidavit, the Ld. CIT(A)-NFAC did not consider the assessee’s plea for condonation of delay and erred in dismissing the assessee’s appeal. The Ld. AR therefore pleaded that the matter may be remitted back to the file of the Ld CIT (A)-NFAC in order to provide one more opportunity to the assessee of being heard. 5. On the other hand, the Ld. DR relied on the orders of the Ld. Revenue Authorities and argued in support of the decision of the Ld. CIT(A)-NFAC 7 6. We have heard both the sides and perused the material on record as well as the orders of the Ld. Revenue Authorities. It is a fact that there is a delay of 153 days in filing the appeal before the Ld. CIT(A)-NFAC. On the issue of condonation of delay, the assessee explained the reasons for belated filing of the appeal before the Ld. CIT(A) by stating that due to multiple health issues, the assessee could not pursue the case with the Authorized Representative and in support of the same the assessee has also furnished the Medical Certificate issued by the Doctor. Ignoring the assessee’s plea for condonation of delay, the Ld. CIT(A) dismissed the appeal. In our considered view the Ld. CIT (A)-NFAC ought to have decided the case on merits by condoning the delay of 153 days in filing the appeal before him as the assessee has explained the reason that prevented the assessee in filing the appeal belatedly and also submitted the Medical Certificate. Under these circumstances, we are of the view that the assessee was prevented by a reasonable and sufficient cause in filing the appeal beyond the prescribed time limit before the Ld. CIT(A)- NFAC and therefore, we hereby remit the matter back to the Ld. CIT(A)-NFAC with a direction to condone the delay of 153 days in 8 filing the appeal before the First Appellate Authority and decide the issues raised before him on merits. It is ordered accordingly. 7. In the result, appeal of the assessee is allowed for statistical purposes. Pronounced in the open Court on 22 nd November, 2023. Sd/- Sd/- (दुåवूǽ आर.एल रेɬडी) (एस बालाकृçणन) (DUVVURU RL REDDY) (S.BALAKRISHNAN) ÛयाǓयकसदèय/JUDICIAL MEMBER लेखा सदèय/ACCOUNTANT MEMBER Dated : 22.11.2023 OKK - SPS आदेश कȧ ĤǓतͧलͪप अĒेͪषत/Copy of the order forwarded to:- 1. Ǔनधा[ǐरती/ The Assessee – Mr. Parasuram Kesari, 26-1-1, NH-5, Chinna Gantyada, Old Gajuwaka, Visakhapatnam-530026, Andhra Pradesh. 2. राजèव/The Revenue – Income Tax Officer, O/o. ITO, Infinity Towers, Ward-5(4), Visakhapatnam, Andhra Pradesh. 3. The Principal Commissioner of Income Tax, 4. आयकर आयुÈत (अपील)/ The Commissioner of Income Tax 5. ͪवभागीय ĤǓतǓनͬध, आयकर अपीलȣय अͬधकरण, ͪवशाखापटणम/ DR, ITAT, Visakhapatnam 6. गाड[ फ़ाईल / Guard file आदेशानुसार / BY ORDER Sr. Private Secretary ITAT, Visakhapatnam