Shri Rakesh Kumar Mishra, Lucknow V. The Income Tax Officer, Range-3(3), Lucknow

ITA 201/LKW/2020

AI Insights

The case involves Mr. Rakesh Kumar Mishra, the appellant, who contested the appellate order of the Commissioner of Income Tax (Appeals) for the Assessment Year 2013-14. The primary contention was the rejection of the audited books of accounts under section 145(3) of the Income Tax Act, 1961, and the subsequent addition of Rs.72,32,730 to the assessee's income. The Assessing Officer had initially passed an ex-parte assessment order under section 144, which was upheld by the CIT(A). The appellant argued that the orders were passed without adequate opportunity to be heard, violating the principles of natural justice. The ITAT admitted the appeal for decision on merits, acknowledging the impact of the COVID-19 pandemic on the delay in filing the appeal, as per the Supreme Court's directive on exclusion of limitation period due to the pandemic.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 123056 (ITAT-LUCKNOW)
• Duration Of Justice: 3 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: A
• Next Hearing Date: 21-06-2023
• Assessment Year: 2013-2014
• Appeal Filed On: 25-05-2020
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: REVENUE AGREED; DEPARTMENTAL
• Assessee Lawyers: AUTHORISED
• Keywords: Opportunity of being heard; Principle of natural justice; Period of limitation; Time period of passing order; Condonation of delay; Set aside
• Section: 144; 145(3); 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH “A”, LUCKNOW BEFORE SHRI. SUDHANSHU SR4IVASTAVA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA No.201/LKW/2020 Assessment Year: 2013-14 Mr Rakesh Kumar Mishra C-56, Sector I, Aliganj Lucknow v. The Income Tax Officer Range 3(3) Lucknow PAN:AJUPM4574A (Appellant) (Respondent) Appellant by: Ms. Shweta Mittal, C.A., Authorised Representative Respondent by: Shri Amit Nigam, Sr. Departmental Representative Date of hearing: 22 06 2023 Date of pronouncement: 27 06 2023 O R D E R PER ANADEE NATH MISSHRA, A.M.: (A) Appeal in I.T.A. No.201/LKO/2020 has been filed by the assessee for Assessment Year 2013-14 against the impugned appellate order dated 05.12.2019 in Appeal No. CIT(A)- I/Lko/2016-17/183 of ld. Commissioner of Income Tax (Appeals) [“ld. CIT(A)” for short]. The grounds of appeal are as under: 1. The Ld. Commissioner of Income-tax (Appeals) has erred in law and on facts in passing the order which is unlawful unjustified and against the principles of natural justice. 2. The Ld. Commissioner of Income-tax (Appeals) has erred in law and on facts in passing the order without giving adequate opportunity of being heard and without considering the written submission made before him. Page 2 of 5 3. The Ld. Commissioner of Income-tax (Appeals) has erred in law and on facts in confirming the rejection of audited books of accounts u/s 145(3) and upholding the decision of Ld. Assessing Officer for making addition of Rs.72,32,730/- disregarding the fact that Rs.2,23,88,106/- on which 8% Profit is computed by Ld. Assessing Officer was paid by M/s Sputnik Realtors Pvt. Ltd. (sister concern of M/s Ansal Properties & Infrastructure Ltd.) as reimbursement of expense incurred by the appellant on their behalf and Rs. 4,45,34,334/- received by M/s Sputnik Realtors Pvt. Ltd. as brokerage/ commission was utilized in payment to the farmers for procurement of their land majorly through banking channel against the MOU dated 03.06.2010 with M/s Ansal Properties & Infrastructure Ltd. 4. The Ld. Commissioner of Income-tax (Appeals) has erred in law and on facts in passing assessment order which is contrary to the facts and law. (B) In this case, the assessment order dated 28.3.2016 was passed by the Assessing Officer under section 144 of the Income Tax Act, 1961 [“I.T. Act” for short], whereby the assessee’s total income was determined at Rs.78,40,791/- (rounded off to Rs.78,40,790/-). The aforesaid assessment order was passed ex- parte qua the assessee. The Assessing Officer rejected the assessee’s books of account by invoking the provisions of section 145(3) of the I.T. Act and proceeded to pass the assessment order. (B.1) Aggrieved, the assessee filed appeal in the office of the ld. CIT(A). Vide impugned appellate order dated 5.12.2019, the ld. CIT(A) upheld the Assessing Officer’s action in invoking the provisions of section 144 of the I.T. Act for passing ex-parte assessment order to the best judgment of the Assessing Officer. She further upheld the action of the Assessing Officer in rejection Page 3 of 5 of the assessee’s books of account by invoking the provisions of section 145(3) of the I.T. Act. (B.2) Assessee being aggrieved again, this present appeal has been filed by the assessee in the Income Tax Appellate Tribunal (“ITAT” for short). (B.2.1) This appeal has been filed after the time prescribed under section 253(3) of the I.T. Act. The assessee has sought condonation of delay in filing of this appeal, under section 253(5) of the I.T. Act. In the petition for condonation of delay, it has been submitted by the assessee that the delay in filing of appeal occurred because of Nationwide lockdown announced by the Government of India on 24.03.2020 and then on 14.04.2020, 03.05.2020 and 18.05.2020 due to outbreak of Covid-19 Pandemic all across India. At the time of hearing before us, the learned Authorised Representative (“ld. A.R.” for short) of the assessee also drew our attention to the fact that the Hon'ble Supreme Court has, in order dated 10.01.2022 [IN RE: COGNIZANCE FOR EXTENTION OF LIMITATION vide Misc. Application No.29 of 2022 and Misc. Application No.665 of 2021 in suo motu Writ Petition (C) No.3 of 2020)], ordered exclusion of period between 15.03.2020 to 28.2.2022 from limitation period, due to outbreak of Covid-19 pandemic. She further submitted that in view of these facts and circumstances, the assessee’s appeal in ITAT should be heard on merits and not treated as barred by limitation. The learned Senior Departmental Representative (“ld. Sr. D.R.” for short) for Revenue agreed with the submissions made on behalf of the assessee in this regard. He expressed no objection to admission of appeal, and urged the Bench to decide the appeal on merits. In view of foregoing, under the specific facts and circumstances of this case, and as Page 4 of 5 representatives of both the sides are in agreement on this, we admit this appeal for decision on merits. (C) The ld. A.R. for the assessee submitted that the Assessing Officer passed an ex-parte order under section 144 of the I.T. Act and rejected the assessee’s books of account by invoking the provisions of section 144(3) of the I.T. Act; without giving reasonable opportunity to the assessee. She further submitted that the Assessing Officer again failed to provide reasonable opportunity to the assessee during the appellate proceedings before the ld. CIT(A) when the ld. CIT(A) called for remand report from the Assessing Officer. In view of the foregoing, she submitted that the impugned order of ld. CIT(A) should be set aside, and that the issues in dispute should be restored to the file of the Assessing Officer with a direction to pass de novo assessment order in accordance with law after providing reasonable opportunity to the assessee. The ld. Sr. D.R. for the Revenue expressed no objection to this and agreed with the submission of the ld. A.R. of the assessee that the impugned appellate order dated 05.12.2019 of the ld. CIT(A) should be set aside and that the Assessing Officer should be directed to pass fresh assessment order in accordance with law after providing reasonable opportunity to the assessee. (C.1) In view of the foregoing and as representatives of both the sides are in agreement on this, we set aside the impugned appellate order dated 05.12.2019 of the ld. CIT(A) and we restore the issues in dispute in the present appeal before us to the file of the Assessing Officer with a direction to pass 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 accordingly. Page 5 of 5 (E) In the result, for statistical purposes, the appeal is partly allowed. Order pronounced in the open Court on 27/06/2023. Sd/- Sd/- [SUDHANSHU SRIVASTAVA] [ANADEE NATH MISSHRA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:27/06/2023 JJ: Copy forwarded to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR By order Assistant Registrar