MS DIAMOND ENTERPRISES, Parbhani V. ITO HINGOLI, PARBHANI

ITA 689/PUN/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 5685 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2017-2018
• Appeal Filed On: 04-04-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Reasonable cause
• Section: 69A; 271B; 44AB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “A”, PUNE BEFORE SHRI R. K. PANDA, VICE PRESIDENT AND MS ASTHA CHANDRA, JUDICIAL MEMBER ITA No.689 & 690/PUN/2024 Assessment Year : 2017-18 MS. Diamond Enterprises, Plot No.A-9, MIDC, Parbhani – 431401 Vs. ITO, Hingoli, Parbhani PAN: AALFM2810P (Appellant) (Respondent) Assessee by : Shri Rajendra Agiwal Department by : Shri Ramnath P. Murkunde Date of hearing : 16-07-2024 Date of pronouncement : 23-07-2024 O R D E R PER R.K. PANDA, VP : The above two appeals filed by the assessee are directed against the separate orders dated 09.02.2024 of the CIT(A) / NFAC, Delhi relating to assessment year 2017-18. For the sake of convenience, both the appeals were heard together and are being disposed of by this common order. ITA No. 689/PUN/2024 2. Although a number of grounds have been raised by the assessee, however, all these relate to the order of the CIT(A) / NFAC in confirming the penalty of Rs.55,574/- levied by the Assessing Officer u/s.271B of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) by not condoning the delay of 171 days in filing of the appeal. 2 ITA No.689 & 690/PUN/2024 3. Facts of the case in brief, are that the assessee is a firm engaged in trading activity of Kernals of cashew after grading and repackaging. Since the assessee had not filed its return of income for the impugned assessment year, the case of the assessee was reopened and the assessment was completed u/s.144 of the Act. Since the assessee has failed to get its accounts audited as per the provisions of section 44AB of the Act, the Assessing Officer levied penalty of Rs.55,574/- u/s. 271B of the Act. 4. Before the CIT(A) / NFAC the assessee filed the appeal with a delay of 171 days along with a condonation application explaining that the said delay was due to negligence on the part of the Tax Consultant. However, Ld.CIT(A) / NFAC was not satisfied with the arguments advanced by the assessee and dismissed the appeal on account of delay stating that there is no sufficient cause for condoning the delay in institution of the appeal filed by the assessee. 5. Aggrieved with such order of the CIT(A) / NFAC the assessee filed an appeal before the Tribunal. 6. Ld. Counsel for the assessee at the outset filed a copy of the order of the Tribunal in quantum proceedings and submitted that the quantum appeal was filed with a delay of 727 days before the CIT(A) / NFAC, who refused to condone the delay and on further appeal by the assessee, the Tribunal restored the issue to the 3 ITA No.689 & 690/PUN/2024 file of the CIT(A) / NFAC with a direction to condone the delay in filing of the appeal and adjudicate the appeal on merit. 7. Similarly, the appeal filed by the assessee against the penalty levied by the Assessing Officer u/s. 271AAC(1) of the Act was also restored to the file of the CIT(A) / NFAC. He accordingly submitted that this matter may be restored to the file of the CIT(A) / NFAC with the direction to condone the delay and decide the appeal on merit. 8. The Ld. DR on the other hand heavily relied on the order of the CIT(A)/ NFAC and submitted that the assessee has not furnished any sufficient cause for not filing the appeal in time. 9. We have heard the rival arguments made by both the sides and perused the orders of the Assessing Officer and Ld. CIT(A) / NFAC. We find the Ld.CIT(A) / NFAC dismissed the appeal filed by the assessee challenging the levy of penalty u/s. 271B of the Act on the ground that there was a delay of 171 days in filing of the appeal by the assessee and the assessee could not explain any reasonable cause for not filing the appeal in time. We find the Tribunal in assessee’s own case in quantum proceedings has condoned the delay of 727 days in filing of the appeal before the CIT(A) / NFAC and restored the issue to his file for deciding the appeal on merit by observing as under: “2. It emerges at the outset that the learned NFAC herein has refused to condone the delay of 727 days in filing of the lower appeal instituted on 22.01.20222, against the assessment order dated 27.12.2019 despite the fact that the entire foregoing period i.e., from the date of 4 ITA No.689 & 690/PUN/2024 assessment coming on 27.12.2019 to that of the institution dated 22.01.2022 falls within the Covid-2019 pandemic outbreak period; has already been held to be excluded for all intents and purposes as per hon’ble apex court’s directions in Cognizance for Extension of Limitation, In re 438 ITR 296 (SC) read with judgment in Cognizance for Extension of Limitation, In re 432 ITR 206(SC) dated 08-03-2021 and 421 ITR 314, under the limitation law.” 10. Since in the instant case also, the order u/s. 271B of the Act was passed on 05.07.2021 and the assessee filed the appeal before the CIT(A) / NFAC on 22.01.2022, therefore, respectfully following the order of the Tribunal in assessee’s own case in quantum proceedings vide ITA No.670/PUN/2024, order dated 14.05.2024 for assessment year 2017-18, we restore the issue to the file of the CIT(A) / NFAC with a direction to condone the delay in filing of the appeal and decide the issue on merit after giving one opportunity of being heard to the assessee. The grounds raised by the assessee are accordingly allowed for statistical purposes. ITA No. 690/PUN/2024 11. The assessee in its sole ground has challenged the order of the CIT(A) / NFAC in confirming the penalty of Rs.61,413/- levied by the Assessing Officer u/s. 271AAC of the Act. 12. After hearing both the sides, we find the Assessing Officer in the instant case levied the penalty of Rs.61,413/- u/s. 271AAC(1) of the Act @ 10% of tax payable on the addition of Rs.7,95,000/- made u/s. 69A of the Act. Since there was a delay of 232 days in filing of the appeal before the CIT(A) / NFAC, the 5 ITA No.689 & 690/PUN/2024 Ld.CIT(A) / NFAC did not condone the delay on the ground that the assessee could not explain to his satisfaction regarding the reasons for such delay. 13. Aggrieved with such order of the CIT(A) / NFAC, the assessee is in appeal before the Tribunal. 14. After hearing both the sides, we find the grounds raised by the assessee in the instant appeal are identical to the grounds of appeal in ITA No.689/PUN/2024. We have already decided the issue and restored the same to the file of the CIT(A) / NFAC with a direction to condone the delay and decide the appeal on merit. Following similar reasoning, we restore the issue to the file of the CIT(A) / NFAC with a direction to condone the delay in filing of the appeal and decide the appeal on merit after giving one opportunity of being heard to the assessee. We hold and direct accordingly. The appeal filed by the assessee is accordingly allowed for statistical purposes. 15. In the result, both the appeals of the assessee are allowed for statistical purposes. Order pronounced in the open Court on 23 rd July, 2024. \S Sd/- Sd/- (ASTHA CHANDRA) (R. K. PANDA) JUDICIAL MEMBER VICE PRESIDENT प ु णे Pune; दिन ांक Dated : 23 rd July, 2024 Ashwini / GCVSR 6 ITA No.689 & 690/PUN/2024 आदेश की प्रतितिति अग्रेतिि/Copy of the Order is forwarded to: 1. अपीलार्थी / The Appellant; 2. प्रत्यर्थी / The Respondent 3. 4. 5. The concerned Pr.CIT, Pune DR, ITAT, ‘A’ Bench, Pune गार्ड फाईल / Guard file. आदेशानुसार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अधिकरण ,पुणे / ITAT, Pune S.No. Details Date Initials Designation 1 Draft dictated on 16.07.2024 Sr. PS/PS 2 Draft placed before author 22.07.2024 Sr. PS/PS 3 Draft proposed & placed before the Second Member JM/AM 4 Draft discussed/approved by Second Member AM/AM 5 Approved Draft comes to the Sr. PS/PS Sr. PS/PS 6 Kept for pronouncement on Sr. PS/PS 7 Date of uploading of Order Sr. PS/PS 8 File sent to Bench Clerk Sr. PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R. 11 Date of Dispatch of order