Davinder, Panipat V. ITO, Ward-4, Panipat

ITA 2793/DEL/2022

AI Insights

The case involves appeals by the assessee, Davinder, against the orders of the National Faceless Appeal Centre (NFAC) for the Assessment Years 2017-18 and 2018-19. The primary contention was the dismissal of the appeal by the Commissioner of Income Tax (Appeals) [CIT(A)] on the grounds of delay in filing, without addressing the merits of the case. The CIT(A) had dismissed the appeal stating that there was no specific order under section 154 of the Income Tax Act, 1961, against which the appeal could be maintained. The Tribunal found that the CIT(A)'s dismissal without considering the substantive issues raised by the assessee was not in accordance with the principles of natural justice and thus remitted the matter back to the AO for a fresh decision.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 114047 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 05-03-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 27-11-2022
• Other Referred Cases: Collector, Land Acquisition vs. Mst. Katiji (1987) 2 SCC 107, N. Balakrishnan vs. M. Krishnamurthy (1998) 7 SCC 123, Vijay Vishin Meghani vs. DC IT 398 ITR 250 (Bom), CIT vs. Ghanshyam: 315 ITR I
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Revised return; Set aside
• Section: 154; 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH ‘SMC’ : NEW DELHI) SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA No.2793 & 2794/Del./2022 (ASSESSMENT YEAR : 2017-18 & 2018-19) Davinder, vs. ITO, Ward 4, H.No.845, Nangal Kheri, Panipat. Panipat – 132 103 (Haryana). (PAN : AXUPD4087B) (APPELLANT) (RESPONDENT) ASSESSEE BY : None REVENUE BY : Shri Om Prakash, Sr. DR Date of Hearing : 06.03.2023 Date of Order : 10.03.2023 ORDER These appeals by the assessee are directed against the respective orders of National Faceless Appeal Centre (NFAC) pertaining to the Assessment Years 2017-18 & 2018-19. 2. Since the issues are common & connected and the appeals were heard together, these are being disposed off by this common order. 3. For the sake of convenience, I am referring to grounds of appeal for AY 2017-18 which read as under :- “1. That the National Faceless Appeal Centre/Commissioner of Income Tax (Appeals) ['CIT(A)'] erred on facts and in law in dismissing the appeal filed by the Appellant only on the ground of delay in filing of appeal against the intimation/order passed by the Centralized Processing Centre, Bangalore ['CPC'] in ITA No.2793/Del./2022 2 intimation issued under section 143(1) of the Income Tax Act, 1961 ('the Act'). 2. That the CIT(A) erred on facts and in law in not affording adequate opportunity to the Appellant for explaining the reason in detail for delay in filing of appeal and therefore the impugned order is perverse for being violative of Principles of natural Justice. 3. That the CIT(A) erred on facts and in law in not appreciating that the appellant is a humble rural agriculturist/farmer Lady, neither having any formal educational qualification nor any taxable income for the year under consideration and had no willful or deliberate intention for delay in filing of appeal; therefore adopting of hyper technical approach to avoid substantive justice by CIT(A) is contrary to the law of land laid down by the Hon'ble Supreme Court in the case of Collector, Land Acquisition vs. Mst. Katiji (1987) 2 SCC 107; N. Balakrishnan vs. M. Krishnamurthy (1998) 7 SCC 123; Vijay Vishin Meghani vs. DC IT 398 ITR 250 (Bom). 4. That the CIT(A), has dismissed the appeal without giving any finding on the merits of the case, and merely on the ground of delay in filing an appeal, it is respectfully submitted, that the order passed by the CIT(A), is liable to be set-aside on this count itself. 5. That the CIT(A) erred on facts and in law in not appreciating that the adjustments permitted under the section 143(1) are (a) any arithmetical error in the return; and (b) an incorrect claim apparent from any information in the return. Further, Explanation to section 143( 1) of the Act defines "an incorrect claim apparent from any information in the return" to, inter-alia, mean (i) inconsistent entries within the return; (ii) non-furnishing of required information in support of entry(ies) in return; and (iii) claim of deduction in excess of specified statutory limit. 6. That the CIT(A) .erred on facts and in law in not appreciating that the CPC has grossly erred in invoking provisions of section 143( 1) for making addition of Rs. ITA No.2793/Del./2022 3 21,49,660 which is clearly illegal and in excess of its jurisdiction and therefore the intimation issued under section 143(1) of the Act by CPC deserves to be quashed/set aside. 7. That the CIT(A) erred on facts and in law in not appreciating that no requisite enquiry was conducted by the Assessing Officer while disallowing the exemption under section 10(37) of the Act and accordingly, the addition made is illegal. 8. That the CIT(A) erred in not following the binding principle laid down by the Hon’ble Supreme Court in the case of CIT vs. Ghanshyam: 315 ITR I and in various other judgements squarely applicable to the facts of the case of the Appellant herein.” 4. I note that in this case, ld. CIT (A) laconically decided the appeal as under :- “4.2.1 I have carefully gone through the submission of the Appellant. I have also gone through the facts of the case. In the appeal form no 35 appellant has mentioned appeal filed u/154 but there is no order u/s154 filed by assessee. In submission assessee has mentioned that he may be afforded an opportunity to rectify the ITR. So there is no order u/s 154 as on date and this appeal is not against any specific order. Therefore the appeal is not maintainable and dismissed.” 5. Against this order, assessee is in appeal before me. None appeared on behalf of the assessee despite issuance of notice. Hence, I proceed to adjudicate the issue by hearing the ld. DR of the Revenue and perusing the records. 6. I note that in this case, pursuant to CPC adjustment in the income of the assessee, assessee had filed revised return of income under section ITA No.2793/Del./2022 4 154 of the Income-tax Act, 1961 (for short 'the Act'). AO did not respond. Assessee proceeded to file an appeal before the ld. CIT (A). Ld. CIT (A) dismissed the appeal on the ground that no order under section 154 of the Act is there. In view of the above and as agreed by the ld. DR for the Revenue, interest of justice will be served if the issue is remitted to the file of AO. AO is directed to decide the issue de novo and pass appropriate order in this regard as per law. Needless to add, assessee should be provided an opportunity of being heard. This will also take care of assessee’s ground relating to violation of natural justice and lack of opportunity. 7. Our above order applies mutatis mutandis to both the above appeals. 8. In the result, both the appeals of the assessee stand allowed for 8statistical purposes. Order pronounced in the open court on this 10 th day of March, 2023. Sd/- (SHAMIM YAHYA) ACCOUNTANT MEMBER Dated the 10 th day of March, 2023 TS ITA No.2793/Del./2022 5 Copy forwarded to: 1.Appellant 2.Respondent 3.CIT 4.CIT(A) 5.CIT(ITAT), New Delhi. AR, ITAT NEW DELHI.