R.P. Associates, Noida V. ACIT,Circle-3, Noida

ITA 888/DEL/2020

AI Insights

The case involves R.P. Associates, who appealed against the order of the Commissioner of Income Tax (Appeals)-1, Noida, which pertained to the assessment year 2015-16. The initial assessment by the Assessing Officer (AO) included additions to the Assessee's income, which were contested. The Commissioner dismissed the appeal due to non-payment of the necessary fee and lack of evidence from the Assessee. The Tribunal found that there was a miscommunication regarding the nature of the order being appealed and remanded the case for a fresh decision, emphasizing the need for the Assessee to provide proof of fee payment and to actively participate in the proceedings.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 112814 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 16-01-2023
• Assessment Year: 2015-2016
• Appeal Filed On: 23-02-2020
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 143(3); 142(1); 250; 143(2)

Judgement Text

1 ITA no. 888/Del/2020 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “F”: NEW DELHI BEFORE SHRI NARENDER KUMAR CHOUDHRY, JUDICIAL MEMBER AND Dr. B.R.R. KUMAR, ACCOUNTANT MEMBER ITA No. 888/Del/2020 [Assessment Year: 2015-16] R.P. Associates, H-11, Alpha-2, Greater Noida, Gautam Budh Nagar-201308 PAN:AANFR1249k V s ACIT Circle-3. Noida. APPELLANT RESPONDENT Assessee represented by: None Department represented by: Sh. S.L. Verma, Sr. DR Date of hearing 17.01.2023 Date of pronouncement 30.01.2023 O R D E R PER N.K.CHOUDHRY, JM: 2 ITA no. 888/Del/2020 The Assessee has preferred the instant appeal against the order dated 31.08.2018 impugned herein, passed by the Ld. Commissioner of Income tax (Appeals)-1, Noida, (in short “Ld. Commissioner”) u/s 250 of the Income Tax Act, 1961 (in short “the Act”), pertaining to the assessment year 2015-16. 2. In this case the Assessee by filing its return of income on 30.09.2015 declared its income at Rs. 44,23,330/-, which came into compulsory scrutiny and consequently notice u/s 143(2) of the Act was issued on 16.09.2016 as well as notice u/s 142(1) of the Act along with questionnaire. In response the Assessee from time to time attended the assessment proceedings and filed the relevant documents as demanded by the AO. Ultimately, the AO made the addition of Rs. 1,12,000/- u/s 40(b)(v) of the Act on account of disallowance qua remuneration/salary payable to Assessee’s partners. Further, the AO also made the addition of Rs. 5,00,000/- as ad hoc disallowance on account of expenses in respect of wages paid by the Assessee. 3 ITA no. 888/Del/2020 3. The Assessee being aggrieved challenged the said addition before the learned Commissioner. Inspite of sending notices, the Assessee did not appear before the learned Commissioner, therefore, the learned Commissioner by considering the fact, in para no. 2 held that the impugned penalty order, the copy of the demand notice and the challan for the fee u/s 249(1)(a) for admission of the appeal is not available on the record. Further in para no. 9 observed that the appeal by the appellant cannot be admitted without payment of necessary fee in terms of provisions of section 249(1)(a) of I.T. Act, 1961. The appellant has brought no evidence on record that it has deposited the necessary fee to the credit of the Central Government. Therefore, the appeal is not maintainable and cannot be admitted. The learned Commissioner also observed in para 10 & 11 that even on merits the appellant has brought nothing on record to discharge the onus upon it that its claim that the impugned assessment order was bad in law and not maintainable in the eyes of the law. No evidence has been brought on record to show that the turnover of the appellant of its business was below the minimum limit prescribed in law. Therefore, in such facts and circumstances, no interference is called for with the impugned assessment order. The same is therefore confirmed. The appeal of the appellant fails and is dismissed. 4. We have given thoughtful consideration to the peculiar facts and circumstances of the case and observe that the learned Commissioner may be inadvertently misconceived with regard to the impugned order as in para no. 2 he has referred the 4 ITA no. 888/Del/2020 assessment order as the impugned penalty order, where it is a fact that the Assessee had challenged the assessment order dated 23.10.2017 passed u/s 143(3) of the Act by the AO as also recorded by the learned Commissioner in para no. 1 of its order. It seems that there was some mis-communication/mis- information before the Ld. Commissioner and, therefore, considering the peculiar facts and circumstances, we are constrained to set aside the impugned order and consequently remand the instant case to the file of the learned Commissioner for decision afresh, suffice to say by affording reasonable opportunity of being heard to the Assessee. The Assessee is directed to file the proof of payment of appeal fee made by the assesse4e on 30.12.2017 vide BSR Code 0510308 serial no. 763 of Rs. 1000/- as mentioned in form no. 35. The Assessee is also directed to cooperate with the appellate proceedings and to appear and file the relevant documents, if necessitated by the learned Commissioner for proper adjudication of the case. In case of default, the Assessee shall not be entitled for leniency and the learned Commissioner would be at liberty to pass the order in accordance with law. 5 ITA no. 888/Del/2020 5. In the result appeal of the Assessee is allowed for statistical purposes. Order pronounced in open court on 30.01.2023. Sd/- Sd/- (Dr. B.R.R. KUMAR) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER *MP* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI