Shymal Paul, Kolkata V. I.T.O., Ward-29(1), Kolkata, Kolkata

ITA 576/KOL/2022

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 9665 (ITAT-KOLKATA)
• Duration Of Justice: 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Next Hearing Date: 25-10-2022
• Assessment Year: 2015-2016
• Appeal Filed On: 11-10-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 143(1); 250

Judgement Text

1. ITA No. 576/Kol/2022 AY 2015-16 ITA No.577/Kol/2022 ÁY 2015-16 Shymal Paul आयकर अपील य अ धकरण, पीठ “A-SMC” , कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL BENCH “A-SMC”KOLKATA सम : ी मनीष बोरड, लेखा सद य Before: Shri Manish Borad, Accountant Member आयकर अपील सं.य/ ITA Nos.576 & 577/Kol/2022 Assessment Year: 2015-16 Shymal Paul 25/1/5A Nakuleshwar Bhattacharjee Lane Kalighat, Kolkata-700 026. बनाम V/s. ITO, Ward 29(1), Kolkata 2 Gariahat Road, Kolkata- 700 068. PAN: AETPP6020N अपीलाथ /Appellant .. यथ /Respondent अपीलाथ क ओर से/By Appellant Shri K.K.Khemka, Ld.AR यथ क ओर से/By Respondent Shri Partha Pratim Barman , Addl. Ld.CIT/DR स ु नवाई क तार ख/Date of Hearing 26-10-2022 घोषणा क तार ख/ Date of Pronouncement 27-10-2022 आदेश /O R D E R Both the captioned appeals of assessee for the assessment year 2015-16 are directed against the separate orders dt. 09-09-2022 and 14-09-202218-09-2020 passed u/s. 250 of the Income-tax Act, 1961 ( in short, referred to as the ’Act’) by the ld. Commissioner of Income-tax, Appeals [ in short, hereafter referred to as ‘the ‘ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi. 2. ITA No. 576/Kol/2022 AY 2015-16 ITA No.577/Kol/2022 ÁY 2015-16 Shymal Paul 2. The assessee has raised the following common grounds of appeal for both the AY 2015-16 under consideration:- 1. THAT THE LD. CIT(A), NFAC’s ORDR DATED 09.09.2022/14.09.2022 IS BAD IN LAW AND FACTS. 2. THAT THE LD.CIT(A), NFAC HAS ERRED IN LAW AND ON FACTS IN DISMISSING THE APPEAL AAINST ORDER U/S 143(3) DT. 08.12.2017/11.04.2017 BY WRONGLY ASSUMING THAT THE ASSESSEE FILED APPLICATION UNDER DTVSVA 2020 AND THAT CERTIFICATE IN FORM 5 WAS ISSUED BY PCIT ALTHOUGH THE DTVSVA APPLICATION WAS FOR PENALTY U/S 271 F ONLY. 3. THAT THE LD.CIT(A) NFAC HAS ERRED IN NOT DECIDING ON MERITS THE GROUNDS OF APPEAL AGAINST THE OPRDER U/S 143(3) OF THE ACT. 4. THAT THE APPLICANT CRAVES LEAVE TO ALTER/AMEND ANY GROUNDS OF APPEAL AND TO TAKE ADDITIONAL GROUNDS BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 3. At the outset, the Ld. Counsel for the assessee submitted that the ld. CIT(A) erred in dismissing the assessee’s appeal(s) inadvertently observing that the assessee has opted under DTVSVA 2020( Vivad se Viswas Scheme 2020). Further, he submitted that the assessee has opted for DTVSVA 2020 Scheme only with regard to appeal filed before the ld. CIT(A) against a penalty levied u/s. 271F of the Act. He, therefore, prayed that suitable direction may be given to the ld. CIT(A) to adjudicate the issues raised by the assessee in both the appeals for both the AY 2015-16 under consideration on merits. 4. Per contra, the Ld. DR failed to controvert the submissions made by the ld. Counsel for the assessee. 5. I have heard the rival contentions and perused the material placed on record before me. I find that in the case of assessee, the assessment order u/s. 143(3) of the Act for the AY 2015-16 was framed 3. ITA No. 576/Kol/2022 AY 2015-16 ITA No.577/Kol/2022 ÁY 2015-16 Shymal Paul on 08-12-2017 and also an intimation u/s. 143(1) of the Act issued on 11-04-2017 for the AY 2015-16. The assessee challenged both these orders before the ld. CIT(A) in Appeal No. CIT(A)-8/10087/2017-18 and Appeal No. CIT(A), Kolkata-8/10006/2017-18, Further, we find that a penalty u/s. 271F of the Act was also levied on the assessee, which was also challenged before the ld.CIT(A) in Appeal No. allotted CIT(A), Kolkata-8/10001/2019-20. 6. Against the order of penalty levied u/s. 271F of the Act, the assessee opted for DTVSVA 2020 Scheme and after paying tax/penalty Form-5 was issued for full and final settlement of tax arrear u/s.5(2) r.w.s 6 of the Direct Tax Vivad se Viswas 2020 Scheme(DTVSVS 2020). 7. However, on perusal of the impugned order(s) of the ld. CIT(A), I find that the ld. CIT(A) inadvertently dismissed both the assessee’s appeals bearing number Appeal No. CIT(A)-8/10087/2017-18 and Appeal No. CIT(A), Kolkata-8/10006/2017-18 stating that since Form-5 had been issued to assessee under D.T.V.V.S 2020, both the appeals are dismissed as withdrawn. This finding of the impugned orders of the ld. CIT(A) in the instant two appeals is factually incorrect, since the assessee has not opted for DTVSVA 2020 Scheme against both these appeals. 8. I, therefore, hold that firstly the ld. CITA) erred in dismissing the appeal(s) by treating the same as withdrawn wrongly assuming that the assessee has opted for DTVSVA 2020 Scheme and secondly, since the ld. CIT(A) has not dealt with assessee’s case and not adjudicated the 4. ITA No. 576/Kol/2022 AY 2015-16 ITA No.577/Kol/2022 ÁY 2015-16 Shymal Paul issues raised on merits by the assessee before the ld. CITA) in Appeal No. CIT(A)-8/10087/2017-18 and Appeal No. CIT(A), Kolkata- 8/10006/2017-18, therefore, I direct the ld. CIT(A) to adjudicate the same after providing reasonable opportunity of being heard to the assessee. Thus, the grounds raised by the assessee before me in both the appeal for the AY 2015-16 are allowed for statistical purpose. प रणामत: नधा रती क अपील (ITA No. 576 & 577/Kol/2022 for the AY 2015-16 सांि यक उ दे य से मंज ू र क जाती है। 9. In the result, both the appeals of the assessee are allowed for statistical purpose. आदेश ख ु ले यायपीठ म दनांक 27-10-2022 को उ घो षत। Sd/- (MANISH BORAD) ACCOUNTANT MEMBER Dated :27 -10-2022 **PP/SPS आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1.अपीलाथ /Appellant/: Shymal Paul, 25/1/5A Nakuleshwar Bhattacharjee Lane, Kalighat, Kolkata-700 026. 2. यथ /Respondent/: ITO, Ward 29(1), Kolkata,2 Gariahat Road, Kolkata-700 068. 3. संबं धत आयकर आय ु त / Concerned CIT 4. आयकर आय ु त- अपील / CIT (A) 5. वभागीय त न ध, आयकर अपील य अ धकरण कोलकाता / DR, ITAT, Kolkata 6.गाड फाइल/Guardfile. By order/आदेश से, /True Copy/ Assistant Registrar ITAT, Kolkata