KAMLESH KUMAR AGARWAL,GANGTOK V. DCIT, CENTRAL CIRCLE 3(2), , KOLKATA

ITA 1922/KOL/2025

AI Insights

The case involves an appeal by Kamlesh Kumar Agarwal against the order of the Commissioner of Income-tax (Appeals), Siliguri, dated 05.11.2019 for the Assessment Year 2015-16. The appeal was initially barred by limitation, being delayed by 2033 days. The assessee's counsel argued that similar delays in related cases were condoned by a co-ordinate bench, which also restored the issues to the Assessing Officer for re-adjudication. The Departmental Representative did not oppose the condonation of delay, acknowledging the precedent in related cases. Consequently, the Tribunal decided to condone the delay and restore the issue to the Assessing Officer, following the principles laid down by the Hon'ble Supreme Court in the case of the Old Settlers of Sikkim.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 784083 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-11-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 25-08-2025
• Other Referred Cases: Binod Kumar Agarwal Vs. DCIT
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAPIL MANDAL
• Assessee Lawyers: SIDDHARTH AGARWAL
• Keywords: Retrospective amendment; Bonafide belief

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, KOLKATA BEFORE SHRI RAJESH KUMAR, AM AND SHRI PRADIP KUMAR CHOUBEY, JM ITA No.1922/KOL/2025 (Assessment Year: 2015-16) Kamlesh Kumar Agarwal C/o Subash Agarwal & Associates, Advocates, Siddha Gibson,1, Gibson Lane, Suite 213, 2nd Floor, Kolkata-700069, West Bengal Vs. DCIT, Central Circle 3(2) Aaykar Bhawan Poorva, 110, Shanti Pally, E.M. By pass Kolkata-700107, West Bengal (Appellant) (Respondent) PAN No. ANXPA0210E Assessee by : Shri Siddharth Agarwal, AR Revenue by : Shri Kapil mandal, DR Date of hearing: 06.11.2025 Date of pronouncement: 11.11.2025 O R D E R Per Rajesh Kumar, AM: This is an appeal preferred by the assessee against the order of the Commissioner of Income-tax (Appeals), Siliguri(hereinafter referred to as the “Ld. CIT(A)”] dated 05.11.2019 for the AY 2015-16. 02. At the outset, we note that the appeal of the assessee is barred by limitation by 2033 days. At the time of hearing the counsel of the assessee explained the reasons for delay in filing the appeal. 03. The ld. Counsel for the assessee further submitted in the related cases also there was delay in filing the appeal of 2033 days and the co-ordinate bench after considering the condonation petition along with affidavit of the assessee condoned the delay and admitted the appeal for adjudication. The ld. AR further submitted that the co- ordinate bench after considering the submission of the assessee restored the issue to the file of the ld. AO for re-adjudication of the Printed from counselvise.com Page | 2 ITA No. 1922/KOL/2025 Kamlesh Kumar Agarwal; A.Y. 2015-16 issue. The ld. AR therefore prayed that following the order in ITA No. 1992/KOL/2025 to 1927/Kol/2025 for A.Y. 2011—12 to 2015-16 in case of Binod Kumar Agarwal Vs. DCIT, the delay may be condoned and the appeal may be restored to the file of the ld. AO for adjudication. 04. The ld. DR on other had fairly agreed that the co-ordinate bench has condoned the delay and restored the appeal to the file of the ld. AO in the related cases. 05. After perusing the facts available on record and hearing the rival contentions, we observe that the case of the assessee is squarely covered by the decision of the co-ordinate Bench in ITA No. 1992/KOL/2025 to 1927/Kol/2025 for A.Y. 2011—12 to 2015-16 in case of Binod Kumar Agarwal Vs. DCIT in which the coordinate bench has condoned the delay and restored the appeal to the file of the ld. AO for re-adjudication vide order dated 28.10.2025. The operative part is extracted below:- “3. It was submitted by the ld. A.R. that the appeals of the assessee are delayed by 2033 days. The assessee has filed an affidavit for condonation of delay, which reads as follow: AFFIDAVIT I, Binod Kumar Agarwal, son of Late Khachanchi Ram Agarwal, aged 50 years, by religion Hindu, residing at Singtam Bazar, Singtam — 737134, Sikkim, do hereby solemnly affirm and state as follows:- 1. That an appeal relating to A.Y. 2011-12 was filed before the Ld. CIT(A), NF AC on 04.01.2019 against order dated 28.11.2018 u/s 144/147. 2. That the said appeal was dismissed by the Ld. CIT(A) by passing an order on 05.11.2019. 3. That I contacted Late V.N. Purohit, FCA having his office at chambers, 4, Chowringhee Lane, Kolkata-700016 through my CA, Yash Arya who had represented me before the lower authorities on or around Printed from counselvise.com Page | 3 ITA No. 1922/KOL/2025 Kamlesh Kumar Agarwal; A.Y. 2015-16 04.12.2019. The said CA Yash Arya delivered the relevant documents to him for filing appeal before the Hon’ble ITAT. 4. That I was of the bonafide belief that my appeal has been duly filed before the Hon’ble ITAT and the notice of hearing shall be received in due time. 5. That after a considerable period of time, when no notice of hearing was forthcoming, I requested Mr. Yash Arya, FCA on or around 15.06.2025 to enquire into the reasons for unreasonable delay in receipt of notice of hearing. 6.That after due enquiry, it transpired that no appeal was filed in ITAT and unfortunately CA V.N. Purohit had expired in the month of May,2021. 7.That then I contacted Advocate Siddharth Agarwal of 1, Gibson Lane, Kolkata 700069 on or around 16.07.2025 through CA Yash Arya for filing appeal before the Hon'ble Tribunal and sent him all the relevant documents. 8.That the office of the said counsel prepared the appeal and finally filed the same on 25.08.2025 with a delay of around 2033 days. 9.That the facts stated in para 1 to 8 are true to the best of my knowledge and belief. 4. It was the submission of the ld. A.R. that the issue in appeals is with regard to whether the assessee is an Old Settler of Sikkim. It was submitted that in view of the Writ Petition filed by the assessee as a Member of the Association of Old Settlers of Sikkim in Writ Petition No. 59 of 2013 before the Hon’ble Supreme Court, the Hon’ble Supreme Court has given directions in its order dated 11.02.2013 and the Act has also been amended withretrospective effect from 1990-91. It was the submission that the assessment order has been passed in November, 2018 and the order of the ld. CIT(Appeals) is of 2019 and it is after the order of the Hon’ble Supreme Court that the decision of the Hon’ble Supreme Court has come. It was the prayer that the delay may be condoned and the issue be restored to the file of the ld. Assessing Officer for readjudication after considering the decision of the Hon’ble Supreme Court in the case of the Old Settlers of Sikkim. 5. In reply, the ld. Departmental Representative vehemently opposed the condonation of delay. It was the submission that the order of the ld. CIT(Appeals) being 2019, the substantial delay should not be condoned. 6. We have heard the rival contentions and gone through the records. A perusal of the facts of the case clearly shows that the issue in the present case is with regard to whether the assessee is an Old Settlers of Sikkim. The Hon’ble Supreme Court has decided the issue in 11.02.2013. This being so, perusal of the affidavit filed by the assessee shows that the delay was on account of the demise of the auditor of the assessee. When technicality is fitted against substantial justice, obviously technicality should step back. The delay is only a Printed from counselvise.com Page | 4 ITA No. 1922/KOL/2025 Kamlesh Kumar Agarwal; A.Y. 2015-16 technical issue and substantial justice should be rejected if the issue of the Old Settlers of Sikkim in respect of the assessee is decided by applyingthe ratios laid down by the Hon’ble Supreme Court. This being so, and also on account of the fact that the affidavit filed by the assessee has not been done to be false. We condone the delay in filing of the appeal as the issue is to be now adjudicated by considering the decision of the Hon’ble Supreme Court in the case of Old Settlers of Sikkim. The issues in these appeals are restored to the file of the ld. Assessing Officer for re-adjudication after considering the principles laid down by the Hon’ble Supreme Court in the case of Old Settlers of Sikkim. 7. In the result, the appeals of the assessee are partly allowed for statistical purposes.” 06. We respectfully following the order of the co-ordinate Bench, condone the delay and restore the issue for adjudication to the file of the ld. AO. 07. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 11.11.2025. Sd/- Sd/- (PRADIP KUMAR CHOUBEY) (RAJESH KUMAR) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Kolkata, Dated: 11.11.2025 Sudip Sarkar, Sr.PS Copy of the Order forwarded to: BY ORDER, True Copy// Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Kolkata 1. The Appellant 2. The Respondent 3. CIT 4. DR, ITAT, 5. Guard file. Printed from counselvise.com "