Om Narayn Singh, Aliganj V. Asstt. Commissioner of Income Tax, Range-3, Lucknow3, Lucknow

MA 8/LKW/2023

AI Insights

The case revolves around a Miscellaneous Application filed by the assessee, Shri Om Narayan Singh, addressing alleged mistakes in a previous ITAT order concerning the assessment year 2014-15. The assessee contested two points: the incorrectly stated delay in filing the appeal before the ITAT and the CIT(A), and the oversight of crucial documents and arguments that supported the timely filing of the appeal. The Tribunal acknowledged the errors in the assessment of the delay and rectified the order to reflect the correct timeline, thereby allowing the appeal to be considered on its merits without procedural hindrances.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 129857 (ITAT-LUCKNOW)
• Duration Of Justice: 4 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-07-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 22-06-2023
• Assessment Year: 2014-2015
• Appeal Filed On: 09-03-2023
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay
• Section: 13

Judgement Text

M.A. No.08/Lkw/2023 Assessment Year:14-15 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH ‘A’, LUCKNOW BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER M.A.No.08/Lkw/2023 (in I.T.A. No.129/Lkw/2021) Assessment Year:2014-15 Shri Om Narayan Singh, HIG-114, Sector-E, Aliganj, Lucknow. PAN:AOFPS3775M Vs. A.C.I.T., Range-3, Lucknow. (Appellant) (Respondent) O R D E R PER ANADEE NATH MISSHRA:A.M. (A) This Miscellaneous Application (“MA" for short) has been filed by the assessee in respect of order dated 20/02/2023 of coordinate Bench of the Income Tax Appellate Tribunal (“ITAT” for short); in I.T.A. No.129/Lkw/2021 for assessment year 2014-15. In this MA the assessee has contended that there were two mistakes in the aforesaid order dated 20/02/2023 of coordinate Bench of the ITAT, Lucknow. The relevant portion of MA is reproduced below: “2. Mistake No. 1: In para 2 of the impugned order, it is stated that there is delay of 13 (thirteen) days in filing the appeal before the Tribunal. However, as per information on record, the actual delay of 18 (eighteen) days had taken place in filing appeal before the ITAT. Appellant by Shri P. K. Kapoor, C. A. Respondent by Shri Amit Nigam, Senior Departmental Representative (“Sr. DR” for short) Date of hearing 23/06/2023 Date of pronouncement 19/07/2023 M.A. No.08/Lkw/2023 Assessment Year:14-15 2 The delay of 18 days was duly explained by the appellant by filing a petition u/s 253(5) of the Income-tax Act, 1961, on 23.06.2022. This is evident from the facts that date of service of the CIT(A)'s order is 13.09.2021 and the appeal against the same was filed before the Tribunal on 30.11.2021. 3. Mistake No. 2: In the first three lines of para 5 of the impugned order, it is mentioned that there was delay of 13 (thirteen) days in filing appeal before the ld. CIT(A) which the appellant did not controvert before your honours, and that the assessee pleaded for restoration of the matter before the ld. CIT(A). 3.1 With great respect, I would like to mention that the said observation to the effect that there was delay of 13 (thirteen) days and that the assessee did not controvert the delay in filing appeal before the CIT(A) is not factually correct. Your honours' kind attention in this regard is invited to page no. 9 to 11 of the Paper Book (which was filed in the Registry of the ITAT on 25.11.2022), wherein the appellant-assessee had placed the affidavit of the assessee and a copy of notice of demand dated 09.12.2016 issued by the Assessing Officer. In para 3 of the affidavit (PB 10) the assessee has stated an oath that assessment order dated 09.12.2016 was served on him on 26.12.2016. With reference to the said averment, it was pleaded during the course of hearing of appeal before your honours that the notice of demand accompanied by assessment order dated 09.12.2016 was served on the assessee on 26.12.2016 and not on 09.12.2016 as was in-advertently mentioned in Form No. 35. Accordingly, it was stated that there was no delay in filing appeal before the ld. CIT(A). It is a matter of record that appeal before the Id. CIT(A) was filed on 21.01.2017 and considering the service of notice of demand on the assessee on 26.12.2016, the time limit for filing appeal before the Id. CIT(A) was available upto 25.01.2017. As the appeal was filed on 21.01.2017, there was no delay in filing appeal in terms of Clause (b) of sub-section (2) of Section 249 of the Income-tax Act, 1961. 3.2. It appears that the affidavit of the assessee and the copy of notice of demand placed on pages 9-11 of the paper book as well as the arguments advanced by the authorised representative for the assessee with reference to the said documents have been omitted to be considered by your honours, as a consequence of which your honours in line no. 9 to 13 of the impugned order while restoring the matter to ld. CIT(A) have directed the assessee to file a petition for M.A. No.08/Lkw/2023 Assessment Year:14-15 3 condonation of delay of 13 (thirteen) days before the ld. CIT(A) and have further held that the ld. CIT(A) on meritorious consideration of the condonation petition may take up the matter in accordance with law. 4. Since the mistakes, as have been pointed out herein-fore, are apparent from the record, the same deserve to be rectified by making necessary amendment in the impugned order, as per provisions contained in section 254 (2) of the Income-tax Act.” (B) At the time of hearing before us, learned A.R. for the assessee drew our attention to the contents of the MA and placed reliance on the same. Learned Sr. Departmental Representative for Revenue left the matter to the discretion of the Bench. (B.1) As regards mistake No. 1, mentioned by the assessee in the MA, we find that the delay of 13 days in filing the appeal by the assessee in ITAT was already condoned by coordinate Bench of the ITAT, Lucknow in paragraph 2 of the aforesaid order dates20/02/2023. The assessee’s appeal was admitted for hearing in ITAT. Therefore, the mistake no. 1, referred to in the assessee’s MA, is academic in nature, infructuous and of no significance. We decline, therefore, to make any rectification in the aforesaid order dated 20/02/2023 of coordinate Bench of ITAT, Luciknow as regards the mistake no. 1 pointed out by the assessee in this MA. (B.2) As regards mistake no. 2, mentioned by the assessee in this MA, it is the assessee’s case that the appeal filed by the assessee in ITAT vide aforesaid I.T.A. No.129/Lkw/2021 was not barred by limitation and was filed within due time. The assessee’s contentions in this regard are contained in paragraphs 3, 3.1 and 3.2 of the MA [already reproduced in foregoing paragraph No. (A) of this order]. M.A. No.08/Lkw/2023 Assessment Year:14-15 4 (B.2.1) We direct the learned CIT(A) to give due regard to the contentions made by the assessee in this MA in respect of mistake No. 2 mentioned in the MA and further; to make necessary verifications from the assessment records to ascertain whether the assessee’s appeal filed in the office of learned CIT(A) was barred by limitation or not. If the learned CIT(A) finds that the assessee’s appeal, filed in the office of learned CIT(A), was not barred by limitation, then learned CIT(A) should communicate this to the assessee and in that situation, the direction given by coordinate Bench of ITAT in aforesaid order dated 20/02/2023 directing the assessee to file a petition for condonation of delay is to be treated as withdrawan and the learned CIT(A) should hear the assessee’s appeal on merits without any requirement on the part of the assessee to file petition for condonation of delay. The aforesaid order dated 20/02/2023 of the coordinate Bench of the ITAT, Lucknow stands rectified/amended to the extent as aforesaid. (C) In the result, this MA is partly allowed for statistical purposes. (Order pronounced in the open court on 19/07/2023) Sd/. Sd/. (SUDHANSHU SRIVASTAVA) (ANADEE NATH MISSHRA) Judicial Member Accountant Member Dated:19/07/2023 *Singh Copy of the order forwarded to : 1. The Appellant 2. The Respondent. 3. Concerned CIT 4. D.R., I.T.A.T., 5. CIT(A) Assistant Registrar