PALAK ENTERPRISE, MUMBAI V. PCIT, , MUMBAI-25

ITA 4110/MUM/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 7730 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-04-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 16-04-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 15-11-2023
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Assessee Lawyers: R K J AD EJ A
• Keywords: Condonation of delay
• Section: 147; 148; 144; 194C; 69A; 246A

Judgement Text

Page | 1 ITA No. 4110/Mum/2023 Palak Enterprise; A.Y. 2011-12 IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, MUMBAI BEFORE SHRI PRASHANT MAHARISHI, AM AND SHRI RAJ KUMAR CHAUHAN, JM ITA No. 4110/Mum/2023 ( Assessment Year: 2011-12) Palak Enterprise A/7, KK Smruti, Sant Narshi Mehta Marg, Near Maneklal Estate, Ghatkopar (West), Mumbai-400 086 Vs. The Income tax Officer 27(2) (5) Vashi Income Tax Officer, Tower No.6, Navi Mumbai-400 703 (Appellant) ( Respondent) PAN No. AAJFP5196P Assessee by : S hri R .K . J ad ej a, AR Revenue by : S hri H. M. Bhat t, DR Date of hearing: 17.0 4.2 024 Date of pronouncement : 23.0 4.2 024 O R D E R PER PRASHANT MAHARISHI, AM: 1. ITA number 4110/M/2023 is filed by M/s Palak Enterprises (the assessee/appellant) for assessment year 2011 – 12 against appellate order passed by the National faceless appeal Centre (NFAC), Delhi (the learned CIT – A) dated 17/9/2023 wherein the appeal filed by the assessee against the assessment order passed under section 144 of The Income Tax Act, 1961 (the Act) dated 30/11/2018 passed by The Income Tax Officer Ward – 27 (2) (5), Mumbai (The AO) was Page | 2 ITA No. 4110/Mum/2023 Palak Enterprise; A.Y. 2011-12 dismissed as inadmissible without condoning delay of 33 days in absence of condonation of delay petition. 2. The assessee is aggrieved and is in appeal before us raising following grounds:- i. On the facts and in the circumstances of the case and in law, the learned CIT (A) order in passing an order under section 250 of the income tax act, 1961 dated 17/9/2023. ii. On the facts and in the circumstances of the case and in law, the learned CIT (A) order in dismissing the appeal filed under section 246A on 31/1/2019. 3. Brief fact shows that assessee is a partnership firm, did not file any return of income for assessment year 2011 – 12. Based on the information available the case was reopened under section 147 of the income tax act after recording the reasons for reopening and taking necessary approvals under section 151 of the act. The reasons for reopening are a contractual receipt U/s 194C of Rs. 7,056,638 not recorded in the books of accounts. The notice under section 148 was issued on 21/3/2018. The assessee did not comply with the notice under section 148 of the income tax act by filing any return of income. Further the notices under section 142 (1) were issued on 29/9/2018 but assessee did not comply. Further the notice under section 133 (6) was also sent to the banker calling for the information in the case of the assessee. Therefore, show cause notice for addition of contractual receipt under section 194C of Rs. 7,056,638 was issued. The assessee did not comply with this show cause notice also. Therefore, the learned assessing officer proceeded to pass an assessment order under section 144 read with section 147 of the income tax act making the addition of Rs. 7,056,638 to the Page | 3 ITA No. 4110/Mum/2023 Palak Enterprise; A.Y. 2011-12 total income of the assessee under section 69A of the act. The total income was assessed at Rs. 7,216,638/– on 30/11/2018. 4. The assessee preferred an appeal before the learned CIT – A. However, the learned CIT – A noted that there is a delay of 33 days in filing of the appeal and the assessee has not filed any reason for delay in filing of the appeal. Accordingly, he held that the appeal has been filed beyond the prescribed time limit as stated under section 249 (2) of the act and therefore it cannot be condoned. Accordingly, the appeal of the assessee was rendered as inadmissible. Such appellate order was passed on 17/9/2023. 5. Assessee aggrieved with that appellate order has preferred appeal before us. On the date of hearing before us, the assessee came with an application dated 15 April 2024 stating that surviving partner Shri Ramji Gangdas Patel has to go to native place today and therefore would not be available for further 12 days. Therefore, the adjournment request was made for three weeks. This adjournment petition was presented by the income tax practitioner Mr RK Jadeja. 6. The learned departmental representative stated that assessee has failed to appear before the assessing officer, the learned CIT – A as well as before the tribunal and therefore the appeal of the assessee does not deserve any merit. 7. As the assessee is represented by the income tax practitioner Mr. RK Jadeja before us, and as we found that the learned CIT – A has dismissed the appeal of the assessee which was filed late by 33 days for the reason that assessee has not made any application for condonation of delay, The ld AR submits that an opportunity may be granted assessee will comply with the same. Therefore in the interest of justice, we find it appropriate to restore this appeal back to the file of the learned CIT – A with a direction to the assessee to Page | 4 ITA No. 4110/Mum/2023 Palak Enterprise; A.Y. 2011-12 file an application for condonation of delay of 33 days, if appeal is delayed before the learned CIT – A, within 90 days from the date of this order. The learned CIT – A may consider the application, if same is filed for this purpose, in accordance with the law. If he finds that there is a sufficient cause preventing the assessee in filing the appeal in time, he may condone the same and decide the issue on the merits. Accordingly, grounds of appeal raised by the assessee are allowed with above direction. 8. In the result appeal is allowed for statistical purposes. Order pronounced in the open court on 23.04.2024. Sd/- Sd/- (RAJ KUMAR CHAUHAN) (PRASHANT MAHARISHI) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Mumbai, Dated: 23.04.2024 Sudip Sarkar, Sr.PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. BY ORDER, True Copy// Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Mumbai