Abir Kumar Nandy, Howrah V. ITO, Ward - 47(3), Kolkata, Kolkata

ITA 441/KOL/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70441 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2013
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2001-2002
• Appeal Filed On: 21-03-2012
• Court: TRIBUNAL
• Department Lawyers: A K DAS
• Assessee Lawyers: N O N E
• Keywords: Assessment record; Condonation of delay

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE , /AND . . . . ' '' ''# '#'# '#, $% ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI ABRAHAM P. GEORGE, AM] & & & & / I.T.A NOS. 441 & 442/KOL/2012 '( )* '( )* '( )* '( )*/ // / ASSESSMENT YEAR: 2001-02 ABIR KUMAR NANDY VS. INCOME-TAX OFFICER, WD. 47 (3), KOLKATA (PAN: ABUPN4714D) (,- /APPELLANT ) (./,-/ RESPONDENT ) DATE OF HEARING: 09.12.2013 DATE OF PRONOUNCEMENT: 09.12.2013 FOR THE APPELLANT: N O N E FOR THE RESPONDENT: SHRI A. K. DAS, SR. DR $0 / ORDER PER SHRI MAHAVIR SINGH, JM: BOTH THESE APPEALS BY ASSESSEE ARE ARISING OUT OF O RDER OF CIT(A)-XXX, KOLKATA IN APPEAL NO. 49/CIT(A)-XXX/WARD-47(1)/2009-10 AND 50 /CIT(A)-XXX/WARD-47(3)/2009-10 DATED 21.12.2011. ASSESSMENT WAS FRAMED BY ITO, WAR D-47(3), KOLKATA U/S. 144/254/147/143(3) OF THE INCOME-TAX ACT, 1961 (HER EINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2001-02 VIDE HIS ORDER DATED 31.12. 2008. PENALTY U/S. 271(1)(C) OF THE ACT IS ALSO UNDER DISPUTE AND PENALTY ORDER WAS PASSED BY ITO, WARD-47(3), KOLKATA VIDE HIS ORDER DATED 29.06.2009. 2. AT THE OUTSET, IT IS NOTICED THAT THE FIRST AND FOREMOST GROUND, IN ITA NO. 441/K/2012 I.E. IN THE QUANTUM APPEAL IS, THAT THE CIT(A) HAS NOT C ONDONED THE DELAY AND DESPITE THAT DECIDED THE APPEAL ON MERITS ALSO. 3. WE HAVE HEARD LD. DR AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT AS REGARDS TO CONDONATION OF DELAY ASSESSEE HA S RAISED FOLLOWING GROUNDS BEFORE US. 1. FOR THAT THE ORDERS OF THE BELOW AUTHORITIES AR E UNLAWFUL. 2. FOR THAT THE REASONS FOR DELAY IN FILING THE APP EAL WAS ORALLY EXPLAINED AT THE FIRST DAY OF HEARING OF THE CASE AND ONLY THEREAFTE R THE HEARING ON MERIT STARTED BY THE THEN CIT(A). 2 ITA NOS. 441 & 442/K/2012 SHRI ABIR KR. NANDY, AY:2001-02 3. FOR THAT ONCE THE DECISION ON MERIT HAS BEEN GIV EN, IT WAS NOT OPEN TO THE APPELLATE AUTHORITY TO RAISE QUESTION ON POINT OF L IMITATION. 4. FOR THAT THE ASSESSING OFFICER HAS NO JURISDICTI ON TO RELY ON AN ORDER WHICH HAS BEEN SET ASIDE BY THE SUPERIOR AUTHORITY AND WHILE FRAMING THE REASSESSMENT ORDER, HE HAS TO INDEPENDENTLY APPLY HIS MIND TO AR RIVE AT A LAWFUL CONCLUSION. AND CIT(A) HAS NOT CONDONED THE DELAY BY OBSERVING AS UNDER: IT IS SEEN THAT THE APPEAL HAS NOT BEEN FILED WITH IN TIME AS FROM VERIFICATION OF THE ASSESSMENT RECORDS IT IS SEEN THAT THE ASSESSMENT O RDER WAS SERVED ON 5.01.2009 (AS PER THE TEAR OFF ACKNOWLEDGMENT SLIP) AND THE APPEAL HA S BEEN FILED ONLY ON 28.07.2009 I.E. BEYOND THE PERMISSIBLE TIME ALLOWABLE. FURTHE R NO REASON FOR DELAY OR APPLICATION FOR CONDONATION OF DELAY HAS BEEN FILED, THEREFORE THE APPEAL IS LIABLE TO BE DISMISSED ON THIS GROUND ONLY. HOWEVER THE APPEAL HAS BEEN HEAR D AND DECIDED ON THE MERITS ALSO. SRI GAUTAM BURMAN, A.R. APPEARED ON BEHALF OF THE A PPELLANT AND WRITTEN SUBMISSIONS FILED HAVE BEEN CONSIDERED. 4. IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT AS SESSEE SHOULD BE ALLOWED OPPORTUNITY TO FILE CONDONATION PETITION STATING THE REASONS AS PE R LAW AND AFTER THAT THE ASSESSEE SHOULD BE HEARD ON MERITS IN CASE CIT(A) CHOOSES TO ADMIT THE APPEAL. IN SUCH CIRCUMSTANCES, HAVE NO ALTERNATIVE EXCEPT TO SET ASIDE THIS APPEAL TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION ON CONDONATION AND THEREAFTER ON MERITS IN CASE HE CHO OSES TO CONDONE THE DELAY. 5. AS REGARDS TO ITA NO. 442/K/2012, WHICH IS PENAL TY APPEAL, IN CONSEQUENCE TO QUANTUM ADDITION WHICH IS CHALLENGED IN THE APPEAL IN ITA N O. 442/K/2012 ABOVE. WE HAVE ALSO SET ASIDE THE QUANTUM APPEAL TO THE FILE OF CIT(A), SIM ILARLY, WE SET ASIDE THIS APPEAL ALSO TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION. 6. IN THE RESULT, BOTH THE APPEALS OF ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. 7. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- . . . . ' '' ''# '#'# '# , $% , (ABRAHAM P. GEORGE) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 9 TH DECEMBER, 2013 12 '3' 4 JD.(SR.P.S.) 3 ITA NOS. 441 & 442/K/2012 SHRI ABIR KR. NANDY, AY:2001-02 $0 5 . 6$ )7- COPY OF THE ORDER FORWARDED TO: 1 . ,- / APPELLANT SHRI ABIR KUMAR NANDY, VILL & P.O. BAGN AN, HOWRAH-711303. 2 ./,- / RESPONDENT ITO, WARD-47(3), KOLKATA 3 . 0' ( )/ THE CIT(A), KOLKATA 4. 5. 0' / CIT KOLKATA <= .' / DR, KOLKATA BENCHES, KOLKATA / ./ TRUE COPY, $0'>/ BY ORDER, ' /ASSTT. REGISTRAR .