Tulsi Das, Noida UP V. ITO ward 3(5), Noida UP

ITA 6428/DEL/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 1748 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 30-07-2019
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 147; 69; 271(1)(c); 144; 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: ‘SMC’ NEW DELHI SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA No.6427/Del/2019 Assessment Year: 2009-10 ITA No.6428/Del/2019 Assessment Year: 2009-10 Tulsi Das, C-119, Sector-51, Noida (UP) PIN: 201301 Vs. ITO, Ward-3(5), Noida PAN :AFWPD5347Q (Appellant) (Respondent) ORDER Captioned appeals are by the same assessee and arise out of two separate orders of learned Commissioner of Income-Tax (Appeals)-1, Noida. One of the appeals arises out of quantum proceedings and the other arises out of penalty proceedings under Section 271(1)(c) of the Income-tax Act, 1961. However, both the appeals relate to assessment year 2009-10. Appellant by Shri A.K. Kundra, Adv. Respondent by Shri Om Parkash, Sr. DR Date of hearing 13.07.2022 Date of pronouncement 29.07.2022 2 ITA Nos.6427 & 6428/Del./2019 ITA No.6427/Del/2019 (quantum appeal): 2. Briefly the facts qua the present appeal are, assessee is a resident individual. Based on AIR information indicating that assessee had purchased immoveable property worth Rs.46,20,000 during the year under consideration, assessing officer reopened the assessment under Section 147 of the Act. Alleging that the assessee did not comply with the notice issued under Section 142(1) of the Act, the assessing officer proceeded to comply the assessment under Section 144 read with section 147 of the Act, to the best of his judgment. While doing so, he added back an amount of Rs.46,20,000 as unexplained investment under Section 69 of the Act. Against the assessment order so passed, the assessee preferred an appeal before learned Commissioner (Appeals). However, by the impugned order, learned Commissioner (Appeals) dismissed the appeal of the assessee in limine for alleged non-compliance with the mandatory provisions of section 249(4)(b) of the Act. 3. We have heard Shri A.K. Kundra, learned counsel appearing for the assessee and Shri Om Parkash, learned Departmental Representative. 3 ITA Nos.6427 & 6428/Del./2019 4. Undisputedly, learned Commissioner (Appeals) has dismissed assessee’s appeal in limine due to alleged non-compliance with the provisions contained under Section 249(4)(b) of the Act. 5. On a careful reading of the aforesaid provision, I find that it speaks of a situation, when, an appeal cannot be entertained in a case, where no return has been filed by the assessee and the assessee has paid an amount equal to the amount of advance-tax which was payable by him. Thus, it is apparent, learned Commissioner (Appeals) has proceeded on the basis that for the assessment year under dispute, assessee had not filed any return of income. Whereas, material placed before me clearly indicates that for the assessment year under dispute, assessee filed his return of income on 02.02.2010, declaring income of Rs.1,90,040. In fact, return of income filed by assessee was selected for scrutiny and assessment in case of the assessee was completed under Section 143(3) of the Act vide order dated 24.11.2011, accepting the returned income. It is manifest, learned Commissioner (Appeals) has totally misconceived the facts while dismissing assessee’s appeal in limine by invoking provisions of section 249(4)(b) of the Act, which is not at all applicable to the facts of the 4 ITA Nos.6427 & 6428/Del./2019 present appeal. Therefore, I have no hesitation in setting aside the impugned order of learned Commissioner (Appeals) and restoring the matter back to his file for deciding the issues raised by the assessee on merits, after due and reasonable opportunity of being heard to the assessee. Grounds are allowed for statistical purposes. 6. In the result, the appeal is allowed for statistical purposes. ITA No.6828/Del/2019 : 7. This appeal arises out of penalty proceedings under section 271(1)(c) of the Act. There is a delay of 202 days in filing the present appeal. 8. After considering the submissions of the parties, I am satisfied that the delay in filing the appeal is due to reasonable cause. Therefore, I admit the appeal for adjudications after condoning the delay. As could be seen from the impugned order, learned Commissioner (Appeals) has dismissed assessee’s appeal in limine due to non-payment of appeal fees. However, while considering assessee’s quantum appeal in ITA No.6427/Del/2019 in the earlier part of the order, I have restored the issue back to the file of learned Commissioner (Appeals) for deciding the issues on merits. 5 ITA Nos.6427 & 6428/Del./2019 9. Considering the fact that imposition of penalty under Section 271(1)(c) of the Act would depend upon the outcome of the quantum appeal, which is still pending, I am inclined to set aside the impugned order of learned Commissioner (Appeals) and restore the issue relating to imposition of penalty under Section 271(1)(c) of the Act to the assessing officer for considering afresh depending upon the result in quantum appeal. Grounds are allowed for statistical purposes. 10. In the result, both appeals are allowed for statistical purposes. Order pronounced in the open court on 29 th July, 2022. Sd/- (SAKTIJIT DEY) JUDICIAL MEMBER Dated: 29 th July, 2022. Mohan Lal Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi 6 ITA Nos.6427 & 6428/Del./2019 Sl. No. Particulars Date 1. Date of dictation (Order drafted through Dragon software): 26.07.2022 2. Date on which the draft of order is placed before the Dictating Member: 27.07.2022 3. Date on which the draft of order is placed before the other Member: 29.07.2022 4. Date on which the approved draft of order comes to the Sr. PS/PS: 29.07.2022 5. Date of which the fair order is placed before the Dictating Member for pronouncement: 29.07.2022 6. Date on which the final order received after having been singed/pronounced by the Members: 29.07.2022 7. Date on which the final order is uploaded on the website of ITAT: 29.07.2022 8. Date on which the file goes to the Bench Clerk 29.07.2022 9. Date on which files goes to the Head Clerk: 10. Date on which file goes to the Assistant Registrar for signature on the order: 11. Date of dispatch of order: