MOURATA DAS, Malda V. ITO, Ward - 3(1), Malda

ITA 642/KOL/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 1287 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2017-2018
• Appeal Filed On: 27-03-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRABIR GUPTACHOUDHURY
• Assessee Lawyers: GOPAL RAM SHARMA
• Keywords: Set aside
• Section: 147; 148; 56(2)(vii)(b); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH KOLKATA BEFORE SHRI RAJESH KUMAR, ACCOUNTANT MEMBER & SHRI PRADIP KUMAR CHOUBEY, JUDICIAL MEMBER ITA No.642/KOL/2024 Assessment Year: 2017-18 Mourata Das C/o Tapan Kumar Das, 7/10, Basulitala Lane, Mokdumpur English Bazar, Malda-732103, West Bengal (PAN: ARWPD4140P) Vs Income Tax Officer, Ward- 3(1), Malda. (Appellant) (Respondent) Present for: Appellant by : Shri Gopal Ram Sharma, Advocate Respondent by : Shri Prabir Guptachoudhury, Addl. CIT Date of Hearing : 20.06.2024 Date of Pronouncement : 02.07.2024 O R D E R PER PRADIP KUMAR CHOUBEY, JUDICIAL MEMBER: This appeal filed by the assessee is against the order of Ld. Commissioner of Income Tax (Appeals),National Faceless Appeal Centre (NFAC), Delhi (hereinafter referred to as “the Ld. CIT(A)”passed u/s. 250 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) for AY 2017-18 dated04.10.2023vide order No. ITBA/NFAC/S/250/2023- 24/1056758267(1). 2. The Ld. Counsel for the assessee before entering into the merit of the case has pressed his condonation petition as the appeal has been filed after a delay of 116 days. The Ld. Counsel submitted that assessee engaged Mr. Krishnendu Mondal, a Tax Consultant and Advocate to file appeal against the order dated 15.05.2023. He filed appeal under his e- 2 ITA No. 642/Kol/2024 Mourata Das, AY: 2017-18 mail ID to represent the matter before the Ld. CIT(A) and he has no knowledge about fixation of hearing by the Ld. CIT(A) and further developments that he had no occasion to receive any information because all the notices issued by the Department were served in the registered e-mail ID and such e-mail was not accessible to her. The Ld. Counsel further submitted that assessee learnt from the said Consultant that the Ld. CIT(A) has disposed of the aforesaid appeal by the order dated 04.10.2023 but, indeed, it came to the knowledge of the assessee on 02.03.2024 only, when the said Consultant handed over the appellate order. The submission of the Ld. Counsel is that there were no bonafide latches on the part of the assessee and there was no intentional delay, hence his submission is to admit the appeal by condoning the delay. The Ld. DR did not oppose in condoning the delay. 3. Keeping in view of the catena of decision of the Apex Court that the case should be decided on merit and not on technical issue and further considering the factual position of the assessee as mentioned in the petition supported with an affidavit, we do not have any hesitation to admit the appeal for hearing by condoning the delay, accordingly delay is here by condoned. 4. Brief facts of the case of the assessee are that the assessee had purchased an immovable property at Rs. 15,88,375/- during the FY 2016-17 relevant to the AY 2017-18 and it is noted from the purchase deed furnished by the assessee that property owned jointly with Shri Tapan Kumar Das husband of the assessee. AO in his order stated that as per information received, stamp value of the property which were purchased by the assessee jointly with her husband was Rs.34,21,000/- whereas Rs.15,88,375/- was only paid towards purchase of the same. A notice u/s. 148 was issued, and in response to the notice issued, 3 ITA No. 642/Kol/2024 Mourata Das, AY: 2017-18 assessee filed her return of income on 22.08.2022 declaring an income of Rs.4,33,100/-. The Ld. AO in its assessment order, a sum of Rs.5,12,212/- has been added as income from other sources u/s. 56(2)(vii)(b) of the Act and a penalty proceeding u/s. 270A has also been initiated separately. The said order has been challenged by the assessee before the Ld. CIT(A) where in the Ld. CIT(A) dismissed the appeal on the ground that inspite of several notices no submissions were made from the side of the assessee and he dismissed the appeal without any adjudication on the merit. 5. The Ld. Counsel for the assessee challenges the impugned order there by submitting that the Ld. CIT(A) disposed of the appeal ex-parte without giving any sufficient opportunity to the assessee and dismissed the appeal in limine against the provisions of section 250(6) of the Act. The Ld. Counsel further submits that Ld. CIT(A) ought to have been held that the impugned addition of Rs.5,12,212/- made u/s. 56(2)(vii)(b) of the Act is not legally sustainable. The learned counsel in course of argument draws the attention of this tribunal on an order dated 25-04- 23 in which income of husband of this appellant was assessed admitting the contention of the assessee correct and the issue was same. Hence, for the same similar facts any addition by the Ld. AO is said to be erroneous, illegal and unjustified. The Ld. Counsel brought the following papers which is as under: (i) Statement of affairs and Income & Expenditure account for the year ended 31.03.2017. (ii) Registered Agreement for sale dated 22/24/01/2013 (iii) Registered sale deed dated 05.07.2016 (iv) Summary of equal payment by both the co-owners (v) Bank statements of the joint owners showing payment against purchase of flat. 4 ITA No. 642/Kol/2024 Mourata Das, AY: 2017-18 (vi) Assessment order of the co-owner husband Sri Tapan Kumar Das u/s. 147 read with section 144B of the Act dated 25.04.2023 for the AY 2017-18. The Ld. Counsel for the assessee has also cited decision passed by the ITAT, Kolkata in ITA No. 401/Kol/2023 and ITA No. 85/Pat/2020. The Ld. DR, on the other hand, supported the impugned order. 6. We have perused the order of the Ld. CIT(A) which is as follows: “During the course of appellate proceedings vide notices dated 01.07.2023, 22.08.2023 and the final opportunity was given on 04.09.2023 and requested the appellant to file the submission by 11.09.2023. However no submissions were made during the entire appellate proceedings. The appellant during the appellate proceedings did not comply with the notices and hence made no submission in support of grounds of appeal. So, it is held that the appellant had nothing more to submit except for raising the ground.” 7. From perusal of the order of the Ld. CIT(A), it appears to us that there is no adjudication rather the appeal has been disposed of in limine only on the issue that the assessee failed to make any submission in support of the grounds of appeal. Since the appeal has not been disposed of on merit and as per the submission of the Ld. Counsel for the assessee that he has no knowledge about the fixing of the appeal before the Ld. CIT(A) and there is no notice served upon her. It is an admitted fact that assessee has purchased a land with her husband and as per the assessee and it also reveals from the order dated 25-04-23 that the appellant is a joint owner with her husband (Tapan Kumar Das) whose income was assessed in the same year on the same issue by admitting the similar contention as correct and did not make any addition as it is made in the assessment order of appellant. Keeping in view the entire facts as well as that CIT(A) has dismissed the appeal without any adjudication, we are of the view that it is a fit case to restore the file again in the file of the Ld. CIT(A) with a direction to pass a fresh order after affording reasonable opportunity of being heard to the assessee and Ld. CIT(A), shall pass a speaking order in accordance 5 ITA No. 642/Kol/2024 Mourata Das, AY: 2017-18 with law. With this observation, we set aside the order of the Ld. CIT(A) and the matter is restored to his file for passing a fresh decision in accordance with law. The assessee is also directed not to take any unnecessary adjournment and cooperate in the appellate proceeding diligently. 8. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 2 nd July, 2024. Sd/- Sd/- (Rajesh Kumar) (Pradip Kumar Choubey) Accountant Member Judicial Member Dated: 2 nd July, 2024 JD, Sr. P.S. Copy to: 1. The Appellant: 2. The Respondent. 3. CIT(A), NFAC, Delhi 4. The CIT, 5. DR, ITAT, Kolkata Bench, Kolkata //True Copy// By Order Assistant Registrar ITAT, Kolkata Benches, Kolkata 1. Date of dictation- 26/06/2024 2. Date on which the typed draft order is placed before the Dictating Member and Other member 26/06/2024 3. Date on which the approved order comes to the Sr. P.S./P.S. - /06/2024 4. Date on which the file goes to the Bench Clerk 02/07/2024 5. Date on which the file goes to the O.S. .................................. 6. Date of Dispatch of the Order......................