MANI TRANSPORT COMPANY,NAVSARI V. INCOME TAX OFFICER, WARD 3, NAVSARI

ITA 660/SRT/2024

AI Insights

The case involves eight appeals by Mani Transport against the orders of the National Faceless Appeal Centre, Delhi, concerning various assessments and penalties for the assessment years 2016-17, 2017-18, and 2018-19. The appeals were primarily dismissed by the CIT(A) due to delays in filing, which were not condoned. The Tribunal noted procedural lapses in the handling of the assessee's appeals, particularly the failure to provide adequate notice and opportunity for the assessee to respond. The Tribunal's decision to restore the matters to the Assessing Officer was influenced by the need to ensure fair hearing and proper assessment in accordance with legal provisions.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 107896 (ITAT-SURAT)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 06-12-2024
• Assessment Year: 2016-2017
• Appeal Filed On: 07-06-2024
• Other Referred Cases: ITA Nos.562-564/SRT/2024
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKESH JAIN
• Assessee Lawyers: RASESH SHAH
• Keywords: Business income; TDS; Non-deduction of tax
• Section: 147; 148; 144; 142(1); 271(1)(c); 133(6); 194C; 271B

Judgement Text

"आयकर अपीलीय अिधकरण,सुरत Ɋायपीठ,सुरत IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND BIJAYANANDA PRUSETH, ACCOUNTANT MEMBER आ.अ.सं./ITA No.565 to 570/SRT/2024 & आ.अ.सं./ITA No.660-661/SRT/2024 (AYs 2017-18, 2016-17 and 2018-19) (physical court hearing) Mani Transport H.No.622 Rajput Nagar, Bansda, Manekpore (Chikhli). B.O. Kukeri, Navsari-396560 [PAN No: AASFM 3194 M] बनाम Vs Income Tax Officer, Ward-3, Navsari-396 445 अपीलाथŎ/Appellant ŮȑथŎ /Respondent िनधाŊįरती की ओर से /Assessee by Shri Rasesh Shah, CA राजˢ की ओर से /Revenue by Shri Mukesh Jain, Sr-DR अपील पंजीकरण/Appeal instituted on 15.05.2024 सुनवाई की तारीख/Date of hearing 05.12.2024 & 06.12.2024 उद ्घोषणा की तारीख/Date of pronouncement 06.12.2024 Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER : 1. These eight appeals by single assessee are directed against separate order of National Faceless Appeal Centre, Delhi [for short to as “Ld. NFAC/Ld.CIT(A)”], out of which one appeal for AY 2016-17, four appeals for assessment year (AY) 2017-18 and three appeals for AY 2018-19 and one for AY 2016-17. Out of total eight appeals, six appeals were listed on 05/12/2024 and two were fixed on 01/01/2025. At the time of hearing six appeals on 05/12/2024, the dates of hearing in remaining two appeals were preponed to 06/12/2024, with the consent of both the parties to pass common order in all appeals. For clarity, the details of all eight appeal are as under; ITA Nos.565-570/SRT/2024 & 660-661/SRT/2024 Mani Transport 2 Sr No. Appeal No. (ITA No.) with AY Nature of appeal in quantum assessment or penalty 1 565/Srt/2024 for AY 2017-18 Quantum assessment u/s 144 2 566/Srt/2024 for AY 2017-18 Penalty u/s 271C 3 567/Srt/2024 for AY 2017-18 Penalty u/s 271B 4 568/Srt/2024 for AY 2017-18 Penalty u/s 270A 5 569/Srt/2024 for AY 2018-19 Penalty u/s 272A(1)(d) 6 570/Srt/2024 for AY 2018-19 Penalty u/s 270A 7 660/Srt/2024 for AY 2016-17 Penalty u/s 271B 8 661/Srt/2024 for AY 2018-19 Quantum assessment u/s 144 2. In all the appeals certain facts are common / inter-connected, there are common grounds of appeal, further consequential penalties in all years are also subject matter in certain appeals, thus, all the eight appeals were clubbed, heard together and are decided by a consolidated order to avoid conflicting decision. In all appeals, there was delay in filing appeal before ld CIT(A). The Ld.CIT(A) has not condoned such delay in filing appeals, resultantly all appeals were dismissed as unadmitted. For the purpose of discussion of fact, facts in ITA No.565/SRT/2024 (Appeal in quantum assessment for AY 2017-18) is treated as “lead” case The assessee has raised the following ground of appeal:- “1. On the facts and circumstances of the case as well as law on the subject, the learned CIT(A) has erred in not condoning the delay in filing the appeal before ld. CIT(A). 2. On the facts and circumstanced of the case as well as law on the subject, the Ld. Assessing Officer has erred in reopening the assessment u/s 147 by issuing notice u/s 148 of the Income Tax Act. 3. On the facts and circumstances of the case as well as law on the subject, the Assessing Officer has erred in making an addition of Rs.30,31,936/ on account of alleged business income. 4. On the facts and circumstances of the case as well as law on the subject, the Assessing Officer has erred in making an addition of Rs.46,33,112/- on account of alleged house property income. 5. It is therefore prayed that the assessment framed u/s 147 r.w.s.144 r.ws. 144B of the Act may please be quashed and/or addition made by Assessing Office may please be deleted. 6. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of hearing of the appeal.” ITA Nos.565-570/SRT/2024 & 660-661/SRT/2024 Mani Transport 3 3. Brief facts are that assessee is a firm engaged in business of transport. No return of income was filed by assessee for assessment year 2017-18. The Assessing Officer found that as per information available in his office, the assessee was in receipt of Rs.4.78 crores and Rs.66.18 lakh on which Tax Deducted at Sources (TDS) under section 194C/194I(a) of the Act. As no return of income was filed by assessee, the Assessing Officer has reason to believe that income of assessee has escaped assessment. The Assessing Officer issued notice under section 133(6) to the assessee on 17.03.2021 to explain the receipt of Rs.4.78 crores on which TDS under section 194C/194I(a) was deducted. No reply was furnished by assessee. Thus, Assessing Officer recorded the reasons and issued notice under section 148 on 31.03.2021. No return of income was filed by assessee, even in response to notice under section 148 of the Act. The Assessing Officer recorded that despite issuing various show cause notice fixing date of hearing on different occasions the assessee neither filed any reply nor furnished required details. The Assessing Officer completed assessment under section 144 of the Act by treating @ 8% of total receipt as income of assessee thereby made addition of Rs.3.78 crores (8% of Rs.3.78 crores). The Assessing Officer also initiated penalty under section 271A of the Act. The Assessing Officer completed the assessment under section 147/ 144/144B on 23.03.2022. 4. Aggrieved by the addition made in the assessment order, the assessee filed appeal before Ld.CIT(A) on 11.01.2024. There was delay of 659 days in filing appeal before ld CIT(A). The assessee while filing statement of fact before Ld.CIT(A) made a prayer for condonation of such delay in filing appeal. The ITA Nos.565-570/SRT/2024 & 660-661/SRT/2024 Mani Transport 4 assessee in its statement of fact stated that e-mail i.d. of [e-mail] mentioned in the ITBA portal, is inoperative as it belonged to their previous Chartered Accountant. Further the mobile number of ITBA portal was one of the partner, namely Rakesh Amrutlal Parmar, who left India and shifted to USA and his phone number also became inoperative. The assessee was not aware about assessment order which passed by Assessing Officer, when order under section 188A dated 30.10.2023 was received, the assessee came to know about passing of such assessment order. The Ld. CIT(A) on considering the statement of fact and the assessment order dismissed the appeal of assessee without condoning the delay in filing appeal, resultantly appeal was not admitted and dismissed in limine. Further aggrieved, the assessee has filed present appeal before the Tribunal. 5. We have heard the submission of Ld. Authorized Representative (Ld.AR) for the assessee and submission of Ld. Senior Departmental Representative for the Revenue (Ld. Sr-DR) and have gone through the order of lower authorities carefully. The Ld. AR for the assessee submits that grounds of appeal raised in quantum appeal in ITA No.565/SRT/2024 as well as in other penalty appeals are covered by the decision of this Tribunal in ITA Nos.562- 564/SRT/2024 dated 14.10.2024, wherein on similar set of fact for assessment year 2016-17, the appeal has already been restored back to the file of Assessing Officer. Thus, all the facts leading to file of present appeals are identical except variation addition as well as different penalties orders. The Ld. AR of assessee submits that same order may be followed. The Ld. AR ITA Nos.565-570/SRT/2024 & 660-661/SRT/2024 Mani Transport 5 of assessee in his fairness submission that while restoring the appeals for assessment year 2016-17, the Tribunal impose payment of cost of Rs. 15,000/- (Rupees fifteen thousand only) to be paid to Surat District Court Legal Aid Authority, Surat within 15 days on receipt of this order in quantum appeal and rest of appeals against the penalty orders are in consequential, no separate cost impose by Tribunal. The Ld. AR of the assessee submits that Bench may consider to impose lesser cost. The ld AR of the assessee submits that official of Surat District Court Legal Aid Authority insists for copy of the order of judicial authorities and various details and particulars and his staff faced difficulties in getting the proper receipt of the cost, thus, either cost may not be imposed or in alternative direction mat be given for payment of cost to other agency. 6. On the other hand, Ld. Sr-DR for the Revenue after going through the grounds of appeal raised in all the appeals and the decision of Tribunal in ITA No.562-564/SRT/2024 (supra), submits that he supports the order of lower authorities. 7. We have considered the rival submission of both the parties and perused the materials available on record. We find that grounds of appeal raised by assessee in present appeals, are covered by the decision of this Tribunal in ITA Nos.562-564/SRT/2024 (supra), wherein the Tribunal passed the following order in quantum assessment and penalty under section 271(1)(c)/271(1)(b)/271B of the Act, relevant part is reproduced below: 6. I have considered the contention of both the parties and have gone through the orders of lower authorities carefully. I have also deliberated the various case law relied by Ld. AR for the assessee. I find that ITA Nos.565-570/SRT/2024 & 660-661/SRT/2024 Mani Transport 6 assessment order was completed under section 144 r.w.s. 144B r.w.s 147 of the Act on 17.03.2022. Before passing the assessment order, Assessing Officer issued numerous notices, neither the assessee complied nor filed return of income in response to notice under section 148 of the Act. Even assessee has not responded to the notice under section 133(6) of the Act. Resultantly, the Assessing Officer assessed @ 8% of income out of total receipt of Rs.4.95 crores on which TDS deduction under section 194C of the Act. On further appeal before Ld. CIT(A) the action of Assessing Officer was upheld by dismissal appeal in limine by not condoning the delay of 664 days. I find that before dismissal appeal not condoning the delay, the Ld. CIT(A) has not recorded whether any date of hearing was fixed for seeking comments / written submission of assessee or not. The appeal was filed on 10.01.2024 and same was dismissed vide order dated 25.04.2024. In my considered view, the Ld.CIT(A) dismissed the appeal without giving show cause notice or minimum opportunity of hearing, on the issue of condoning the delay. 7. Besides the aforesaid observations, I have independently examined the facts and find that the Assessing Officer passed ex parte assessment order on 17.03.2022. the ld AR of the assessee claimed that the assessee came to know about passing of assessment order on service of order under section 188A dated 31.10.2023, thus, the assessee should have filed appeal on or before 30.11.2023, yet appeal before Ld.CIT(A) was filed on 10.01.2024, though the assessee was required to file appeal within thirty days from the receipt of assessment order. The case of assessee is that they were not aware about passing the assessment order as contended in para-6 of statement of fact. I find that despite receiving more than Rs.5.00 crores by way of business receipt on which TDS was deducted under section 194C of the Act, the assessee has not even think to file return of income nor responded on various notices and just took excuse that telephone number and e-mail i.d. provided on the ITBA portal was inoperative. I find that assessee is raising all excuses instead of fulfilling their obligation / duty to update or provide operative telephone number or e-mail address with the Department/ITBA portal. The conduct of assessee is not fair. I find that Ld.CIT(A) has dismissed the appeal of assessee without giving any opportunity as reflected from the impugned order. Therefore, instead of ITA Nos.565-570/SRT/2024 & 660-661/SRT/2024 Mani Transport 7 going into further controversy I deem it appropriate that assessee may be allowed one more opportunity to contest the appeal on merit, but subject to payment of cost of Rs. 15,000/- (Rupees fifteen thousand only) to be paid to District Court Legal Aid Authority, Surat within 10 days on receipt of this order. Copy of the receipt be place on record of this case. With the above observation, the delay in filing before Ld.CIT(A) is condoned. Since I have condoned the delay in filing appeal before Ld.CIT(A) and keeping in view the fact that Ld.CIT(A) has not adjudicated the grounds of appeal on merit. Further I find that the Assessing Officer also passed ex-parte order, therefore, the matter is restored back to the file of Assessing Officer who decide all the issue afresh in accordance with law. Needless to direct that the Assessing Officer shall pass order after giving fair and reasonable opportunity to assessee. The assessee is also directed to be more vigilant in future in making compliance in time and not to seek further adjournment without any valid reason and furnish all relevant and necessary evidences if so desire. With these directions the appeal of assessee is allowed for statistical purposes. 8. In the result, assessee’s appeal ITA No.562/SRT/2024 is allowed for statistical purposes. ITA No.563/SRT/2024 in the matter of penalty levied u/s 271(1)(c) 9. I find that there is similar delay of 454 days in filing appeal before Ld. CIT(A). Considering the fact that I have condoned the delay in quantum assessment and restore the matter back to the file of Assessing Officer, therefore, penalty order dated 15.09.2022 would not survive, however, the Assessing Officer would be at liberty to initiate penalty as per law after giving effect to the order in quantum assessment. In the result, assessee’s appeal ITA No.563/SRT/2024 is allowed. ITA No.564/SRT/2024 in the matter of penalty levied u/s 271(1)(b) 10. I find that Assessing Officer levied penalty under section 271(1)(b) for non-compliance of notice under section 142(1) of the Act on 15.11.2021, 25.01.2022 and 15.02.2022 in not furnishing the required details. The Assessing Officer levied penalty @ Rs. 10,000/- for each default thereby levied total penalty of Rs. 30,000/-. On appeal before Ld. CIT(A) the delay of 454 days was not condoned. Resultantly, appeal was dismissed as unadmitted. Considering the fact that addition in quantum assessment is ITA Nos.565-570/SRT/2024 & 660-661/SRT/2024 Mani Transport 8 restored back to the file of Assessing Officer. Therefore, I deem it appropriate to restore this appeal back to the file of Assessing Office with the direction to allow opportunity to assessee to contest the penalty proceedings on merit. The assessee is also directed to furnish document and reply to the show cause notice of proposed penalty for non-compliance of notices on 11.04.2022 and pass order after considering the reply of assessee. In the result, assessee’s appeal ITA No.564/SRT/2024 is allowed for statistical purposes. 8. Considering the facts that in order dated 14.10.2014, the appeal is quantum assessment for AY 2016-17 is restored back to the file of Assessing Officer, subject to payment of cost of Rs. 15,000/-, thus appeal in quantum assessment in AY 2017-18 in ITA 565/Srt/2024 & AY 2018-19 in ITA No. 661/Srt/2024 is also restored back to Assessing Officer with similar direction, however, the cost of Rs. 15,000/- each for AY 2017-18 & 2018-19 (total Rs. 30,000/-) shall be paid to Bank account of Income Tax Appellate Tribunal Surat Bar Association, Surat, within ten days of receipt of this order. 9. We find that rest of the appeal are arising out of various penalties order, which are either consequential to the additions in quantum assessment or for failure to get accounts audited or for non-deduction of tax. All penalties orders were passed in ex-parte order, ld CIT(A) not admitted the appeal thereby confirmed all the penalties, thus, considering the facts that we have already restored the appeal in quantum assessment to the file of Assessing officer, therefore all the appeals against the penalties are also restored back to the file of Assessing Officer to pass order afresh in accidence with law. Needless to direct that before passing the order afresh the Assessing Officer shall allow reasonable opportunity to the assessee. the assessee is also directed to be more vigilant in making compliance to the notices of Assessing Officer. ITA Nos.565-570/SRT/2024 & 660-661/SRT/2024 Mani Transport 9 10. In combined result, all the appeals are allowed for statistical purposes. A copy of this order be placed in the respective case file(s). Order pronounced in open Court on 06/12/2024. Sd/- Sd/- (लेखा सद˟/BIJAYANANDA PRUSETH) (Ɋाियक सद˟ PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER सूरत / Surat Dated: 06/12/2024 Dkp Outsourcing Sr.P.S* आदेश की Ůितिलिप अŤेिषत/ Copy of the order forwarded to :  अपीलाथŎ/ The Appellant  ŮȑथŎ/ The Respondent  आयकर आयुƅ/ CIT  िवभागीय Ůितिनिध, आयकर अपीलीय आिधकरण, सूरत/ DR, ITAT, SURAT  गाडŊ फाईल/ Guard File By order/आदेश से, // True Copy // सहायक पंजीकार आयकर अपीलीय अिधकरण, सूरत "