Mohd. Sulaman Farooqui , Pratapgarh V. Income Tax Officer , Pratapgarh

ITA 5/ALLD/2021

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 6163 (ITAT-ALLAHABAD)
• Duration Of Justice: 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2016-2017
• Appeal Filed On: 24-05-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Reasonable cause; Non passing of speaking order; Set aside
• Section: 68; 143(3); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD ‘SMC’ BENCH, ALLAHABAD (THROUGH VIRTUAL COURT) BEFORE SHRI.VIJAY PAL RAO, JUDICIAL MEMBER ITA No.05/ALLD/2021 Assessment Year: 2016-17 Mohd Sulaman Farooqui, Kunda, Pratapgarh, U.P. PAN-AAKPF8908N v. Income Tax Officer, Pratapgarh, U.P. (Appellant) (Respondent) Appellant by: Mr. Praveen Godbole, C.A. Respondent by: Mr. A.K. Singh, Sr. DR Date of hearing: 20.12.2021 Date of pronouncement: 20.12.2021 O R D E R VIJAY PAL RAO, JUDICIAL MEMBER: This appeal by the assessee is directed against the order dated 30.08.2019 of CIT(A), (Lucknow-2), for the assessment year 2016-17. There is a delay of 74 days in filing the present appeal. The assessee has filed an application for condonation of delay and explained the reasons for delay as due to ongoing situation of COVID-19 Pandemic. Because of the restrictions since March, 2020 the assessee could not receive the impugned order in time which was sent on portal and consequently there is a delay in taking the steps for filing the appeal. The learned AR of the assessee has submitted that the delay in filing the appeal is neither intentional nor deliberate but due to exceptional circumstances of prevailing COVID-19 Pandemic in the country and the overall situation being faced by everyone including the assessee. Thus, he has prayed that the delay of 74 days may be condoned. 2. On the other hand, the learned DR has objected to the condonation of delay. ITA No. 5/Alld/2021 3. Having considered the rival submissions and carefully gone through the reasons explained by the assessee in the application for condonation of delay, it is noted that the impugned order was passed by the CIT(A) on 30.08.2019 and the assessee stated that the assessee received the order only on 10 th January, 2021 as this order was not received by post but the same was found available on the portal of the department. Even otherwise, during the last more than one and a half year there were restrictions due to the prevailing COVID-19 Pandemic since March, 2020 onwards. Accordingly, in the facts and circumstances of the case and particularly the Pandemic period from March, 2020 to September, 2021, the reasons explained by the assessee are found to be reasonable cause for delay in filing the present appeal. Hence, the delay of 74 days in filing the present appeal is condoned. 4. The assessee has raised the following grounds:- 1. That in view of the matter assessment framed u/s 143(3) vide order dated 18/12/18 passed u/s 143(3) of the Act on income Rs. 15,98,850/- is bad both on the facts and in law. 2. That in any view of the matter the Ld. CIT(A) was wrong in deciding the appeal ex- parte without providing reasonable opportunity to the assessee and simply by applying Multiplan India case appeal was deciding which action is highly unjustified. 3. That in any views of the matter addition of Rs. 5,35,755/- on account incentive given to dealers by disallowing on fifth of the total expense claimed as made by the Assessing Officer and confirmed by CIT(A) is highly unjustified. 4. That in any view of the matter disallowance of Rs, 29,400/- out of salary expenses by disallowing 10% of salary claimed as made by Assessing officer and confirmed by CIT(A). 5. That in any view of the matter disallowance of Rs, 13,072/- out of travelling expenses and Rs. 20,667/- out of depreciation by disallowing 10% of expenses claimed is highly unjustified. 6. That in any view of the mater addition of Rs, 11,18,805/- out of cash deposit in bank account is highly unjustified and the Assessing officer was wrong in invoking the p0rovisiojn of Section 68 of the Act hence the entire actin is bad in law. 7. That in view of the matter the Assessing office was wrong in adding only entries in bank when there was debit entries also and the bank entries both credit and debit should be considered as a whole hence the entire action is bad in law. 8. That in any view of the matter addition of Rs. 5,20,000/- regarding purchase of car, as made by the Assessing officer and confirmed by CIT(A) is highly unjustified when the said investment was from disclosed sources. 9. That in any view of the matter interest charged under different section is highly unjustified. ITA No. 5/Alld/2021 10. That in any view of the matter the appellant reserves his right to take any fresh grounds of appeal before hearing of appeal. 5. At the time of hearing, the learned AR of the assessee has submitted that in Ground No. 2, the assessee has challenged the ex parte order passed by the CIT(A) while applying the decision in the case of Commissioner Of Income-Tax vs Multiplan India (P.) Ltd. 38 ITD 320 and not decided the appeal of the assessee on merit. Thus, the learned AR has submitted that the impugned order of the CIT(A) may be set aside and the matter may be remanded to the record of the CIT(A) for fresh adjudication of the same on merits after giving one more opportunity of hearing to the assessee. 6. On the other hand, learned DR has submitted that the CIT(A) has granted four opportunity of hearings to the assessee but none has appeared before the CIT(A) therefore, it is clear that the assessee was not interested in prosecution of the appeal before the CIT(A). Accordingly, the CIT(A) has rightly dismissed the appeal of the assessee for non prosecution and confirmed the order of the Assessing Officer in the absence of any explanation or argument on behalf of the assessee. 7. I have considered the rival submissions as well as relevant material on record. At the outset, it is noted that he CIT(A) has dismissed the appeal of the assessee summarily in para 5 to 8 as under:- “5. In ground nos. 1 to 8 appellant has challenged the additions made amounting to Rs. 11,20,598/- under various heads by the AO. Several opportunities have been allowed to the appellant in terms of the noitces fixed for hearing of the appeal under section 250 of the Act issued to the appellant. No compliance has been made by the appellant till date. The details of the opportunities allowed to the appellant to represent in this case are tabulated a under:- Date of Notice Date of hearing fixed Remarks 07.05.2019 15.05.2019 None Attended 23.05.2019 30.05.2019 None Attended 06.06.2019 12.06.2019 None Attended 21.06.2019 20.07.2019 None Attended ITA No. 5/Alld/2021 6. The aforesaid noncompliance reveals beyond doubt that the appellant has nothing to say in the mater of the present appeal. Thus, it appears that the assessee is not interested in the prosecution of the present appeal and the same is liable to be dismissed on this ground itself. The law assists those who are vigilant and not these who sleep over their rights. This principle is embodied in the well-known dictum “VIGILATIBUS, NON DORMENTIBUS, JURA SUBVENIUNT”. Considering the facts and relying on the decision of the Hon’ble ITAT, Delhi Bench, in the case of CIT Vs. Multiplan India Ltd. reported in 38-ITD-320 and the judgment of the Hon’ble Madhya Pradesh High Court in the case of Estate of Late Tukoji Rao Holker Vs. CWT(1997) reported in 223-ITR-480 the present appeal is hereby dismissed. 7. The appellant has raised grounds 1 to 8, which challenged the addition of Rs. 11,20,598/- made by the AO. It is noted that the appeal of the appellant has been dismissed by me for non-prosecution in Para 6. In view thereof the various grounds raised in appeal have become academic in nature. 8. In the result, the appeal is dismissed.” 8. From the impugned order, it is manifest that the CIT(A) has dismissed the appeal for want of prosecution and not gone into the merits of the grounds raised by the assessee. It is specifically stated that the appeal has been dismissed for non prosecution and therefore, the grounds raised by the assessee becomes academic in nature. Thus, it is clear that the impugned order of the CIT(A) is a non speaking order and the appeal filed by the assessee has not been decided on merits. Therefore, the impugned order is set aside and the matter is remanded back to the record of the CIT(A) for adjudication of the same afresh on merits by a speaking order after giving one more opportunity of hearing to the assessee. 9. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 20.12.2021 through video conferencing at Allahabad. Sd/- [VIJAY PAL RAO] JUDICIAL MEMBER DATED: 20/12/2021 Sh ITA No. 5/Alld/2021 Copy forwarded to: 1. Appellant – 2. Respondent – 3. CIT(A) , Allahabad 4. CIT 5. DR - By order Assistant Registrar