SHRI NITYANAND PANDEY,HOOGHLY V. I.T.O., WARD - 23(1), HOOGHLY

ITA 2067/KOL/2024

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The case involves Shri Nityanand Pandey, who appealed against the order of the Commissioner of Income Tax (Appeals) - NFAC, Delhi, which was passed under section 250 of the Income Tax Act, 1961, for the assessment year 2013-14. The appeal was initially barred by limitation but was admitted after the Tribunal found sufficient cause for the delay. The primary contention in the appeal was the arbitrary and unjustified nature of the CIT(A)'s order, which was claimed to have been passed without a reasonable opportunity of hearing and without considering the merits of the case. The ITAT noted that the CIT(A) failed to provide a reasoned decision as mandated by section 250(6) of the Act and did not address the grounds raised in the appeal adequately.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 777044 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2025
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 07-10-2024
• Other Referred Cases: Ajji Basha Vs. CIT, Commissioner of Income-tax (Central) Nagpur v. Premkumar Arjundas Luthra (HUF)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Condonation of delay; Set aside; Difference of opinion; Change of opinion; Opportunity of being heard; Reopening of assessment; Competent authority; Reason to believe; Tangible material
• Section: 234B

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘A’ BENCH, KOLKATA Before SHRI SONJOY SARMA, JUDICIAL MEMBER & SHRI RAKESH MISHRA, ACCOUNTANT MEMBER I.T.A. No.: 2067/KOL/2024 Assessment Year: 2013-14 Shri Nityanand Pandey Vs. I.T.O., Ward - 23(1), Hooghly (Appellant) (Respondent) PAN: BDTPP2491R Appearances: Assessee represented by : Soumitra Choudhury, Advocate. Department represented by : Bonnie Debbarma, Addl. CIT, Sr. DR. Date of concluding the hearing : 21-July-2025 Date of pronouncing the order : 18-September-2025 ORDER PER RAKESH MISHRA, ACCOUNTANT MEMBER: This appeal filed by the assessee is against the order of the Commissioner of Income Tax (Appeals)-NFAC, Delhi [hereinafter referred to as Ld. 'CIT(A)'] passed u/s 250 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) for AY 2013-14 dated 22.04.2024, which has been passed against the assessment order u/s 144/147 of the Act, dated 28.12.2018. 1.1. The Registry has informed that the appeal filed by the assessee is barred by limitation by 108 days. An application seeking condonation of delay has been filed by the assessee stating as under: “That the Ld. CIT(A)-NFAC has passed the order for the assessment year 2013-14 on 22.04.2024, so the statutory date of filing the appeal was 21.06.2024. The appeal is filed to-day i.e. after 108 days of delay. Printed from counselvise.com Page | 2 I.T.A. No.: 2067/KOL/2024 Assessment Year: 2013-14 Shri Nityanand Pandey. That the appeal was filed before the Ld. CIT(A) through online by Sri Prakash Agarwal but due to illness he was irregular to open the e-mail and not showing I.T. Portal. That 1st week of June, 2024, the assessee was enquiring the said appeal and said A/R. has shown the appellate order is lying in I.T. Portal and immediately approached the A/R. for further steps to be taken in the matter. The said tax consultant is not very conversant with the Tribunal matters, therefore, he has not advised me to file appeal before the Hon'ble Tribunal against the order passed by the Ld. CIT(A). Then the assessee has approached Sri Soumitra Choudhury, Advocate on 1st week of September, 2024 for some other taxation matter who has advised me to file the appeal immediately along with a delay Condonation Petition and asked the said lawyer to prepare our appeal immediately and he has prepared the appeal immediately which is filing to-day. Under the abovementioned facts and circumstances your goodself is requested to condone the said delay and to hear the appeal on merits, there was not default on our part in filing the appeal as I am not properly guided by the said Tax consultant. That the prayer of the appellant may kindly be accepted and the delay be condoned for the end of justice because a substantial merit has in this appeal. That before disposing of this petition a reasonable opportunity of hearing is craved for by your petitioner.” 1.2. The assessee has also filed an affidavit dated 11.03.2025 for condonation of delay in filing the appeal before the Tribunal. Considering the application as well as the affidavit for condonation of delay and the reasons stated therein, we are satisfied that the assessee had a reasonable and sufficient cause and was prevented from filing the instant appeal within statutory time limit. We, therefore, condone the delay and admit the appeal for adjudication. 2. The assessee is in appeal before the Tribunal raising the following grounds of appeal: “1. For that on the facts of the case, the order passed by the Ld. CIT(A) on 22.04.2024 which is completely arbitrary, unjustified and illegal. Printed from counselvise.com Page | 3 I.T.A. No.: 2067/KOL/2024 Assessment Year: 2013-14 Shri Nityanand Pandey. 2. For that on the facts of the case, the order passed by the Ld. C.I.T.(A) without giving reasonable opportunity of hearing to the assessee which is completely arbitrary, unjustified and illegal. 3. For that on the facts of the case, the Ld. C.I.T.(A) was wrong in not considering the merit of the case, therefore, the order passed by the Ld. C.I.T. (A) is completely arbitrary, unjustified and illegal. 4. For that on the facts of the case, the impugned order is at best capable of being classified as a case of mere change of opinion, and the 148 notice dated 28.03.2018, hence, the assessment is bad in law should be quashed. 5. For that on the facts of the case, the A.O. was wrong in not issuing the Reasons recorded u/s. 148(2) of the I.T. Act, the recording of reasons for reopening of assessment and furnishing of the same has to be strictly complied with as it is a jurisdictional issue covered by Apex Court Judgement. 6. For that the reopening of assessment u/s. 148 of the I.T. Act based of reason to suspect unsustainable as A.O. failed to demonstrate live link between tangible material and formation of reason to believe that income had escaped assessment, hence the reassessment is bad-in-law. 7. For that on the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in making addition of Rs. 1,86,25,000/- cash deposited in Bank which is purely business transaction, therefore, gross addition is completely arbitrary, unjustified and illegal. 8. For that on the facts of the case, the A.O. was assessment order passed merely based on report only relied upon NFMS materials but the A.O. himself has not made any independent enquiry with the Assessee's, therefore, the whole addition amounting to Rs.1,86,25,000/- is completely arbitrary, unjustified and illegal. 9. For that the charging interest u/s. 234A at Rs.4,46,400/- and u/s. 234B at Rs.38,50,200/- which are mechanically wrong and illegal. 10. For that the appellant reserves the right to adduce any further ground or grounds, if necessary, at or before the hearing of the appeal.” 3. Brief facts of the case as culled out from the order of the Ld. CIT(A) are as under: “The facts of the case are that the appellant did not originally file his return of income for the year under consideration. Based on the information on the possession of the department that the appellant had made a cash deposit of Rs. 1,86,25,000/- in his bank account during the year under Printed from counselvise.com Page | 4 I.T.A. No.: 2067/KOL/2024 Assessment Year: 2013-14 Shri Nityanand Pandey. consideration, but did not file his return of income, a notice u/s 148 of the Act was issued by the Assessing Officer on 28.03.2018, after recording reasons and obtaining approval from competent authority. This notice was not complied with. Thereafter, a number of notices were issued from time to time, details of which are mentioned in the body of assessment order, asking the appellant to file return and also explain the source of cash deposits. However, not of the notices issued were ever complied with. Finally, the Assessing Officer issued a show-cause notice to the appellant on 22.11.2018, mentioning therein the details of notices issued and the proposed assessment to be made in case of non-compliance. However, this notice was also not responded. The Assessing Officer noted from the bank statement that the appellant had made a cash deposit of Rs. 1,86,25,000/- in the bank account of the appellant. In absence of any explanation from the appellant, the Assessing Officer held the entire amount of Rs. 1,86,25,000/- to be unexplained income and assessed the income of the appellant to that amount.” 4. Aggrieved with the assessment order, the assessee filed an appeal before the Ld. CIT(A) who issued four notices for hearing but as there was no response from the assessee, he inferred that the Ld. AO made the additions based on the available records after giving adequate opportunity to the assessee and marshalling the facts. The assessee did not produce any evidence in support of his claim or made any response against the various notices issued from time to time during the entire appellate proceedings and therefore, there was no materials before the Ld. CIT(A) to deviate from the order of the Ld. AO and in his view, the assessment order was quite in order and the same was confirmed. 5. Aggrieved with the order of the Ld. CIT(A), the assessee has filed the appeal before the Tribunal. 6. Rival contentions were heard and the submissions made have been examined. The Ld. AR submitted that the assessee could not appear either before the Ld. Assessing Officer or before the Ld. CIT(A) due to the family problems and requested that since the assessee has adequate evidence in support of the relief claimed, the matter may be Printed from counselvise.com Page | 5 I.T.A. No.: 2067/KOL/2024 Assessment Year: 2013-14 Shri Nityanand Pandey. remanded the Ld. AO for fresh adjudication as adequate opportunity could not be availed by the assessee. 7. Though the Ld. DR relied upon the order of the Ld. CIT(A) but did not raise any serious objection if the matter is remanded to the Ld. AO. 8. We note that section 250(6) casts a duty on the Ld. CIT(A) to pass an order in appeal which should state the points for determination and a decision as well as the reason for arriving at such decision. The provisions of section 250(6) are reproduced as under: “250(6) – The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision.” 9. A perusal of the appellate order shows that while the Ld. CIT(A) has discussed non-compliance on the part of the assessee as the notices sent were not complied with but he has not adjudicated the appeal on merit. The Ld. CIT(A) upheld the view of the AO and has not passed a reasoned order for arriving at the decision, as is required u/s 250(6) of the Act. We further note that in Ajji Basha Vs. CIT (2019) 111 taxmann.com 348 (Madras) it has been held that a speaking order on merits with reasons and findings is to be passed by Commissioner (Appeals) on basis of ground raised in assessee's appeal; he cannot dispose assessee's appeal merely by holding that Assessing Officer's order is a self-speaking order which requires no interference. The relevant extract from the order is as under: 6. … The first respondent is the appellate authority. Needless to state that the Appellate Authority is also a fact finding authority and therefore, he has to consider the order of assessment on the grounds raised in the appeal and thereafter, pass a speaking order on merits and in accordance with law by giving his own reasons and findings as to whether the order of assessment can be sustained or not. In other words, the order passed by the Appellate Authority should explicitly exhibit his application of mind to the facts and circumstances Printed from counselvise.com Page | 6 I.T.A. No.: 2067/KOL/2024 Assessment Year: 2013-14 Shri Nityanand Pandey. and the objections raised in the grounds of appeal, also by expressing his reasons and findings in support of his conclusion. 7. In this case, the Appellate Authority, after extracting the order of the Assessing Officer in full, has not given any other reason or finding to dismiss the appeal except by stating that he is of the considered view that the Assessing Officer's order is a self speaking order and does not call for any interference. In my considered view, such single line finding of the Appellate Authority, cannot be sustained as a proper exercise of the Appellate Authority, while disposing the appeal. Therefore, it is apparent that the order impugned in this writ petition is an outcome of total non-application of mind. Consequently, the impugned order cannot be sustained. It is further contended that before passing the order, the petitioner was not heard. 10. It has also been held in the case of Commissioner of Income-tax (Central) Nagpur v. Premkumar Arjundas Luthra (HUF) [2016] 69 taxmann.com 407 (Bombay) after discussing the provisions of sections 250(1) and 251(1) that the law does not empower the CIT(A) to dismiss the appeal for non-prosecution as is evident from the provisions of the Act. The relevant extract is as under: 8. From the aforesaid provisions, it is very clear once an appeal is preferred before the CIT(A), then in disposing of the appeal, he is obliged to make such further inquiry that he thinks fit or direct the Assessing Officer to make further inquiry and report the result of the same to him as found in Section 250(4) of the Act. Further Section 250(6) of the Act obliges the CIT(A) to dispose of an appeal in writing after stating the points for determination and then render a decision on each of the points which arise for consideration with reasons in support. Section 251(1)(a) and (b) of the Act provide that while disposing of appeal the CIT(A) would have the power to confirm, reduce, enhance or annul an assessment and/or penalty. Besides Explanation to sub-section (2) of Section 251 of the Act also makes it clear that while considering the appeal, the CIT(A) would be entitled to consider and decide any issue arising in the proceedings before him in appeal filed for its consideration, even if the issue is not raised by the appellant in its appeal before the CIT(A). Thus once an assessee files an appeal under Section 246A of the Act, it is not open to him as of right to withdraw or not press the appeal. In fact the CIT(A) is obliged to dispose of the appeal on merits. In fact with effect from 1st June, 2001 the power of the CIT(A) to set aside the order of the Assessing Officer and restore it to the Assessing Officer for passing a fresh order stands withdrawn. Therefore, it would be noticed that the powers of the CIT(A) is co-terminus with that of the Assessing Officer i.e. he can do all that Assessing Officer could do. Therefore just as it is not open to the Assessing Officer to not complete the assessment by allowing the assessee to withdraw its return of income, it is not open to the assessee in appeal to withdraw and/or the CIT(A) to dismiss the appeal on account of non- Printed from counselvise.com Page | 7 I.T.A. No.: 2067/KOL/2024 Assessment Year: 2013-14 Shri Nityanand Pandey. prosecution of the appeal by the assessee. This is amply clear from the Section 251(1)(a) and (b) and Explanation to Section 251(2) of the Act which requires the CIT(A) to apply his mind to all the issues which arise from the impugned order before him whether or not the same has been raised by the appellant before him. Accordingly, the law does not empower the CIT(A) to dismiss the appeal for non-prosecution as is evident from the provisions of the Act. 11. Since there was no proper compliance before both the Ld. AO as well as the Ld. CIT(A), in the interest of justice and fair play it was considered that the request of the assessee to set aside the case before the Ld. AO may be allowed so that a proper opportunity of being heard may be provided. Hence, after examining the facts of the case, we deem it appropriate to set aside the order of the Ld. CIT(A) as well as the order of the Ld. AO and remit the matter back to the Ld. AO for making the reassessment de novo. Needless to say, the assessee shall be given a reasonable opportunity of being heard to make any further submission it wants to make in support of the relief claimed and shall not seek unnecessary adjournments. Accordingly, the grounds taken by the assessee in his appeal are partly allowed for statistical purposes. 12. In the result, the appeal filed by the assessee is partly allowed for statistical purposes. Order pronounced in the open Court on 18th September, 2025. Sd/- Sd/- [Sonjoy Sarma] [Rakesh Mishra] Judicial Member Accountant Member Dated: 18.09.2025 Bidhan (Sr. P.S.) Printed from counselvise.com Page | 8 I.T.A. No.: 2067/KOL/2024 Assessment Year: 2013-14 Shri Nityanand Pandey. Copy of the order forwarded to: 1. Shri Nityanand Pandey, 1059, Sk Nagar Naya Basti, Pravashnagar, Rishra, Hooghly, West Bengal, 712249. 2. I.T.O., Ward - 23(1), Hooghly. 3. CIT(A)-NFAC, Delhi. 4. CIT- 5. CIT(DR), Kolkata Benches, Kolkata. 6. Guard File. //True copy // By order Assistant Registrar ITAT, Kolkata Benches Kolkata Printed from counselvise.com "