Diaya Enterpreneur , Kolkata V. ITO,Wd-43(4), Kolkata, Kolkata

ITA 628/KOL/2023

AI Insights

The case involves Diaya Enterpreneur, the appellant, contesting an assessment order for the Assessment Year 2016-17, which was passed under section 143(3) of the Income Tax Act, 1961. The primary contention revolves around the alleged arbitrary nature of the CIT(A)'s order and the assessment order's reliance on the fair market value fixed by the State Government, which differed from the actual sales price received by the assessee. The CIT(A) had initially dismissed the appeal due to a perceived delay in filing, which the Tribunal later found to be within the acceptable time limit. The Tribunal's decision to allow the appeal for statistical purposes and remand the case back to the CIT(A) underscores the importance of procedural fairness and the right to a comprehensive hearing.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 128754 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Next Hearing Date: 05-09-2023
• Assessment Year: 2016-2017
• Appeal Filed On: 22-06-2023
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Reasonable cause
• Section: 143(3); 250

Judgement Text

आयकर अपीलीय अधिकरण कोलकाता 'एसएमसी' पीठ, कोलकाता म ें IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘SMC’ BENCH, KOLKATA श्री संजय गग ग , न्याधयक सदस्य एवं डॉ. मनीष बोरड, ल े खा सदस्य क े समक्ष Before SRI SANJAY GARG, JUDICIAL MEMBER & DR. MANISH BORAD, ACCOUNTANT MEMBER I.T.A. No.: 628/KOL/2023 Assessment Year: 2016-17 Diaya Enterpreneur.................................................Appellant [PAN: AAGFD 8035 J] Vs. ITO, Ward-43(4) Kolkata.......................................Respondent Appearances: Assessee represented by: Sh. Rip Das, A/R. Department represented by: Sh. Jitendra Kanti Lal Surti, JCIT. Date of concluding the hearing : September 6 th , 2023 Date of pronouncing the order : September 22 nd , 2023 ORDER Per Manish Borad, Accountant Member: This appeal filed by the assessee pertaining to the Assessment Year (in short ‘AY’) 2016-17 is directed against the order passed u/s 250 of the Income Tax Act, 1961 (in short the ‘Act’) by ld. Commissioner of Income-tax (Appeals)-NFAC, Delhi [in I.T.A. No.: 628/KOL/2023 Assessment Year: 2016-17 Diaya Enterpreneur. Page 2 of 5 short ld. ‘CIT(A)’] dated 16.12.2022 arising out of the assessment order framed u/s 143(3) of the Act dated 27.11.2018. 2. Registry has informed that the appeal is time barred by 128 days. Condonation application has been filed by the assessee. Perusal of the same indicates that the said delay was on account of illness of the assessee who was undergoing medical treatment and which restrained the assessee from furnishing the documents to its tax consultant for filing the appeal. We are satisfied that the assessee has reasonable cause and the delay was not intentional. We therefore, condone the delay and admit the appeal for adjudication. 3. The assessee is in appeal before the Tribunal raising the following grounds: “i. FOR THAT, the facts and in circumstances of the case, the impugned Appeal order u/s 250 of the IT Act, dated 16/12/2022, passed by the Learned CIT(A) NF AC, Delhi is liable to be set aside/modified as the same has been passed arbitrarily; ii. FOR THAT, the facts and in circumstances of the case and without prejudice to any other grounds taken herein, the impugned order for rejection of the Appeal Petition has been passed on the best of judgement basis without proper consideration of facts and clarification and the settled position of law and hence the said order is liable to be set aside/modified; iii. FOR THAT, the registered mail id of the Assessee was under the control of the Accountant, who left the job of Assessee and Assessee got the actual possession of the hard copy of the 1st assessment order u/s 143(3) on 29/01/2019 and filed appeal petition on 28/02/2019, which was within the limit of 30 days, hence there has been neither any late nor any misrepresentation of facts; I.T.A. No.: 628/KOL/2023 Assessment Year: 2016-17 Diaya Enterpreneur. Page 3 of 5 iv. FOR THAT, the impugned original/1 st assessment order was passed by the A. O. Ward 43(4)/Kol considering the turnover of the assessment on the basis of Fair Market Value as fixed by the State Govt, for Rs. 2,19,92,000.00, whereas actual sales price received by the assessee of Rs. 1,73,60,450.00 as per prevailing market price of goods. Hence, the addition of Rs. 46,31,550.00 to the income of the assessee is against facts and records. v. FOR THAT the dealer craves leave to put forth any other ground or grounds of appeal at the time of hearing as earlier.” 4. At the outset, ld. Counsel for the assessee submitted that ld. CIT(A) has dismissed assessee’s appeal in limine for alleged delay of 30 days in filing the appeal before ld. CIT(A). He contended that the assessment order was served on the assessee on 29.01.2019 and the appeal was filed on 28.02.2019 which was well within the prescribed time limit. Therefore, prayer was made to condone the delay in filing the appeal before ld. CIT(A) and direct him for adjudicating the issues on merits. 5. Ld. D/R on the other hand, opposed the request made by ld. Counsel for the assessee. 6. We have heard rival contentions and perused the records placed before us. We notice that the assessee being a partnership firm declared income of Rs. 3,03,910/- in the e-return filed on 27.09.2016 for AY 2016-17. After the case being selected for limited scrutiny through CASS assessment was framed u/s 143(3) of the Act on 27.11.2018. On perusal of the assessment order, we notice that ld. CIT(A) has referred to the letter given by ITO, Ward- 43(4) Kolkata wherein it has been stated that the assessment order was sent to the assessee through e-mail on 27.11.2018 itself i.e. I.T.A. No.: 628/KOL/2023 Assessment Year: 2016-17 Diaya Enterpreneur. Page 4 of 5 on the day of passing of the assessment order. It is further, mentioned that the hard copy of the assessment order has been sent to the assessee on 31.12.2018. Ld. CIT(A) also is of the view that when the assessee was served the assessment order on 27.11.2018 through e-mail and on 31.12.2018 by hard copy whereas the appeal has been filed on 28.02.2019 which is thus, beyond the prescribed time limit within which the appeal needs to be filed. For this delay of 30 days, appeal of the assessee was dismissed being non-maintainable. 7. We however, going through the contentions raised by the assessee and also observing that the hard copy of the assessment order was sent from the office of ITO on 31.12.2018, it was finally served upon the assessee on 29.01.2019. We also notice that sending of notice from e-portal sometimes goes without attention of the assessee because this being a new system and some of the assessees are not so efficient in dealing with the computer-based applications and keeping a consistent track of the e-mails received. We, therefore in the larger interest of justice and being fair to both the parties, condone the delay of 30 days in filing the appeal before ld. CIT(A) and restore all the issues raised on merits before us to the file of ld. CIT(A) for afresh adjudication with a speaking order. Needless to mention that proper opportunity of being heard should be provided to the assessee. The assessee is also directed to remain vigilant and file necessary documents, if considered necessary, in support of its grounds of appeal and should not take adjournment, unless otherwise required for reasonable cause. In case after providing sufficient opportunity to the assessee, there is no I.T.A. No.: 628/KOL/2023 Assessment Year: 2016-17 Diaya Enterpreneur. Page 5 of 5 compliance by the assessee, then ld. CIT(A) can pass a speaking order in accordance with law. 8. In the result, the appeal filed by the assessee is allowed for statistical purposes. Kolkata, the 22 nd September, 2023 Sd/- Sd/- [Sanjay Garg] [Manish Borad] Judicial Member Accountant Member Dated: 22.09.2023 Bidhan (P.S.) Copy of the order forwarded to: 1. Diaya Enterpreneur, 7 No. Durga Charan Banerjee Street, Kolkata-700 005. 2. ITO, Ward-43(4) Kolkata. 3. CIT(A)-NFAC, Delhi. 4. CIT- 5. CIT(DR), Kolkata Benches, Kolkata. //True copy // By order Assistant Registrar ITAT, Kolkata Benches Kolkata