PRATAPRAY KUNVARJI ADHIKARI,VAPI V. INCOME TAX OFFICER WARD-7, VAPI

ITA 596/SRT/2024

AI Insights

The case involves two appeals by the assessee, Pratapray Kunvarji Adhikari, against the orders of the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, for the Assessment Years 2011-12 and 2012-13. The appeals were primarily concerned with the re-opening of assessments under section 147, additions made regarding transactions with BSE and MCX, and issues related to salary income and penalties. The Tribunal noted procedural lapses in the handling of the assessee's submissions and the service of notices, leading to ex-parte orders by the lower authorities. The Tribunal emphasized the need for adherence to the principles of natural justice and allowed the appeals, restoring the matters to the Assessing Officer for a fresh assessment.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 470572 (ITAT-SURAT)
• Duration Of Justice: 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Next Hearing Date: 17-10-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 20-05-2024
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVIKANT GUPTA
• Assessee Lawyers: P. M. JAGASHETH
• Keywords: Set aside; Additional evidence; Salary income; Principle of natural justice
• Section: 148; 144; 13

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT (SMC) BENCH BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER ITA Nos. 596 & 597/SRT/2024 for AY: 2011-12 & 2012-13 (Physical hearing) Pratapray Kunvarji Adhikari, 19, Row House, Kailash Dham, Khodiyar Nagar, Chharwada, Vapi – 396191 PAN : ABVPA6707C Vs The ITO, Ward – 7, Vapi APPELLANT RESPONDEDNT Appellant by Shri P.M. Jagasheth, CA Respondent by Shri Ravi Kant Gupta, CIT-DR Date of Institution 20/05/2024 Date of hearing 17/10/2024 Date of pronouncement 17/10/2024 Order under Section 254(1) of Income tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. These two appeals by assessee are directed against the order of learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (in short ‘the NFAC’), Delhi, dated 22.03.2024 and 08.063.2024 for Assessment Years (AYs) 2011-12 and 2012-13. In both the appeals the assessee has raised certain common grounds of appeal. Facts in both the appeals are almost similar except variation of addition on account of transaction conducted with Bombay Stock Exchange (BSE) and Multi Commodity Exchange (MCX). Thus, both the appeals are clubbed and heard together and decided by a common order. For appreciation of fact appeal for AY-2012-13 is treated as lead case. The assessee has raised following grounds of appeal: “1. On the facts and in the circumstances of the case as well as the law on the subject, the learned the Assessing Officer has erred in re-opening the assessment u/s. 147 of the I.T. Act and issuing notice u/s. 148 of the Income Tax Act, 1961. ITA No.596 & 297-/SRT/2024/AY.2011-12 & 2012-13 Pratapray Kunvarji Adhikari 2 2. On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has erred in confirming the action of the Assessing Officer in making addition of Rs.33,38,991/- in respect of the transaction conducted with BSE and MCX without considering the actual amount invested. 3. On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has erred in confirming the action of the Assessing Officer in making addition of Rs.4,70,360/- on account of salary income without considering the deduction mentioned in Form 16 issued by the Employer. 4. On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has not offered adequate opportunities to hear the case and passed ex-parte order and hence the case may please be set aside and restored back to the CIT(A) or AO. 5. On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has erred in confirming the action of the Assessing Officer in initiating penalty proceedings u/s.271(1)(c) of the Act. 6. On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has erred in confirming the action of the Assessing Officer in initiating penalty proceedings u/s.271(1)(b) of the Act. 7. On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has erred in confirming the action of the Assessing Officer in charging interest u/s.234 A/B/C of the Act on account of delay in payment of tax. 8. On the facts and in the circumstances of the case as well as the law on the subject, the case appellant craves for admission of additional evidence in the interest of natural justice and equity. 9. It is therefore prayed that the above addition may please be deleted as learned members of the tribunal may deem it proper. 10. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of the hearing of the appeal.” 2. Rival submission heard both the parties and perused the record. I find that this delay of 13 days in filing appeal for AY.2012-13. The assessee has filed his affidavit in support of of condonation of delay. The ld. AR submits that while filing appeal before ld. CIT(A), consultant of assessee has given his own e-mail address, later on the assessee appointed new consultant. The notice if any, was ITA No.596 & 297-/SRT/2024/AY.2011-12 & 2012-13 Pratapray Kunvarji Adhikari 3 served on e-mail address of old consultant, who has not informed. Thus, neither any compliance could be made before ld. CIT(A) nor appeal to be filed in time. The ld. AR submits that there is sufficient cause for condonation of delay. The ld. AR submits that delay in filing the appeal neither intentional nor deliberate. The ld. AR submits that assessee has good case on merit and is likely to succeed, if case of assessee is considered and heard on merit. On merit, the ld. AR of the assessee submits that ld. CIT(A) passed ex parte order for want of submission. The assessee could nor furnish his submission as the e- mail address mentioned on Form 35 is old consultant who has not informed the assessee as the assessee has changed his counsel during the pendency of appeal before ld. CIT(A). The ld. AR submits that assessee is really interested in pursuing his appeal before ld. CIT(A), if one more opportunity is given to assessee. The ld. AR further submits that assessment was also completed under section 144 r.w.s. 147 of the Act. No notice under section 148 served upon the assessee. The ld. AR submits that both the authorities below are a ex parte order to avoid the long drown process and remand report from Assessing Officer, the matter may be restored back to the file of Assessing Officer instead of ld. CIT(A). 3. On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) on the plea of condonation of delay, he submits that Bench may take decision in accordance with discretion. However, on merit, ld. Sr. DR submits that assessee was given a number of opportunities by Assessing Officer as well as by ld. CIT(A). The assessee has not made any compliance either before Assessing Officer or before ld. CIT(A). The Assessing Officer very reasonably in ITA No.596 & 297-/SRT/2024/AY.2011-12 & 2012-13 Pratapray Kunvarji Adhikari 4 making addition @ 1.00% of total transaction of assessee in BSE and in MCX. Thus, the assessee does not deserve any further relief on merit. 4. I have considered the rival submission of both the parities and have gone through the order of lower authorities carefully. First, I consider the plea of condonation of delay. Considering the fact that delay in filing the appeal is only 13 days. The assessee has explained the delay by filing affidavit before me. On considering the plea of ld AR of assessee, I find that delay in filing appeal is not intentional, therefore, delay in filing the appeal of 13 days is condoned. Now adverting merit of the case and admitted the appeal of the assessee. 5. I find that Assessing Officer as well as ld. CIT(A) passed the ex parte order for the want of proper submission. Considering the fact that substantial rights of assessee are involved in the present appeal, lower authorities have passed the order in absence of submission. Now before me, the ld. AR of the assessee has undertaken on behalf of the assessee to be more vigilant in future. Thus, keeping in view the principle of natural justice, all the grounds of appeal raised by the assessee are restored back to the file of Assessing Officer to pass order afresh on all the issues. Needless to direct before passing the assessment order, the Assessing Officer shall allow fair and reasonable opportunity to the assessee. The assessee also directed to be more vigilant in future in making compliance of notices of hearing. In the result, the grounds of appeal raises by assessee is allowed for statistical purposes. 6. In the result, the appeals filed by the assessee is allowed for statistical purposes. ITA No.596 & 297-/SRT/2024/AY.2011-12 & 2012-13 Pratapray Kunvarji Adhikari 5 ITA No. 596/Srt/2024 for AY 2011-12 7. Considering the facts that on similar set of facts, I have restored the appeal for AY.2012-13 to the file of Assessing Officer, thus, following the principal of consistency, this appeal is also restored back to the file of Assessing Officer with similar directions. 8. In the result, this appeal is also allowed for statistical purpose. Order pronounced on 17/10/2024 in the open court. Sd/- (PAWAN SINGH) JUDICIAL MEMBER Surat, Dated: 17/10/2024 SAMANTA Copy to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr.PS/PS, ITAT, Surat "