SHRI ALTAF HUSAIN SHAH,SRINAGAR vs. INCOME TAX OFFICER WARD 1(1), SRINAGAR

Per Anikesh Banerjee, J.M.:

The instant appeal of the assessee is directed against the order of the ld. Commissioner of Income-tax (Appeals), Jammu, (in brevity of CIT(A) order passed u/s. 250(6) of Income-tax Act, 1961 (in brevity the Act), date of order

29.01.2020 for assessment year 2001-02. The impugned order was originated from the order of ld. Income-tax Officer, Ward -1(1), Srinagar (in brevity AO), order passed u/s. 144/147, date of order 30.12.2008.

2 ITA No. 13/Asr/2021 Altaf Husain Shah v. ITO 2. The brief fact of the case is that the assessee has challenged the order of

the ld. CIT(A) passed on dated 29.01.2020. The first appeal order was passed on

20.01.2017 by same appellate authority. The appeal was rejected & order passed

ex-parte on the ground that no one appeared during appeal proceeding. After

order of appeal the assessee filed a petition for seeking to re-admit the appeal of

the assessee on an application dated 24.04.2017 before the ld. CIT(A). The

CIT(A) rejected the application by noting the following observations, which is

reproduced as below:

“3. It is the outset of adjudication categorically highlighted that the instant order should in no way be construed as being in continuation to the above said appellate order dated 20.01.2017, rather the instant order is being issue of re-admissionof the appeal only. The AR of the appellant has not been able to produce any judicial decision before the undersigned which empowers the CIT(A) to re-admit any appeal which was dismissed on account non-compliance from the appellant. The AR of the appellant has resorted to order 41 Rule 19 of the Civil Procedure Code 1908 in order to oblige the undersigned to re-admit the appeal. However, I understand that the provisions of Civil Procedure code 1908 cannot be applied to the proceedings under the Income Tax Act, 1961 unless specifically mentioned somewhere and as per my limited knowledge in the vast field of law, I cannot entertain re-admission of the instant appeal which has already been adjudicated by my learned predecessor as dismissed on account of default in prosecution. Therefore, the application dated 24.04.2017 seeking re-admission of appeal of the appellant is rejected”. Against the order of the ld. CIT(A) on dated 29.01.2020 the assessee filed a

petition before the Hon’ble High Court of Jammu & Kashmir at Srinagar

bearing WP(C) no. 390/2021 dated of order 18.03.2021. The relevant para no.

3& 4 of the order of the jurisdictional High Court is extracted as below:

“03. We have heard learned counsel for the parties and considered the matter. We feel that without going into the merits of the case, recording of any finding or making an observation will effect the rights of the parties, therefore, we are only restricting

3 ITA No. 13/Asr/2021 Altaf Husain Shah v. ITO our decision to the extent of petitioner having the remedy to challenge the order on the grounds available under law as contended in the write petition. However, learned counsel has brought attention of the Court towards the application Sub Section 3 of section 253 of the Act which provides that the appeal can be filed within a period of 60 days of the date on which the order sought to be appealed against is communicated to the assessee. Learned counsel further submits that admittedly order was communicated to petitioner on 3rd March 2020 which was received on 5th March, 2020. Learned counsel submits that in essence the period has expired on 5th May 2020 but the petitioner could not file the appeal on account of COVID-19 pandemic. Learned counsel further submits that Hon’ble Supreme Court while registering this difficulty as already issued direction to the Appellate Tribunal in Suo Moto Write Petition (Civil) No. 03 of 2020 to exclude the period of limitation from 15.03.2020 to 14.03.2021. In view of the application of order of the Supreme Court the petitioner has yet two months to file appeal before the Tribunal.

As per the order of the jurisdictional High Court, the matter was filed before the

Bench on dated 31/03/2021 by challenging the order of the ld. CIT(A) with

delay of 331 days. We respectfully considered the order of the Hon’ble

Jurisdictional High Court and delay for 331 days is condoned. The ld. Sr Dr has

not made any objection in this issue. The assessee’s case is taken for

adjudication.

authorities and respectfully observe the order of the Jurisdictional High Court.

The assessee challenged the order of CIT(A) for non-adjudication based on

merit.

3.1. The addition made by the ld. AO u/s. 144/147 for non-explanation of

purchase of land Rs.45,75,000/- which was added back u/s. 69 of the Act. The

4 ITA No. 13/Asr/2021 Altaf Husain Shah v. ITO assessee was not filed its returned during the impugned assessmentyear. The ld.

AO calculated net profit @5% on the undisclosed turn over amount to Rs. 14.00

lac which comes to Rs. 70,000/- for the business of Cement and Sanitary. The

amount of Rs.70,000/- was added back with the total income of the assessee.

3.2. The entire issue of the appeal was argued by the ld. Counsel for non-

entertaining the merit by the ld. CIT(A). The ld. SR DR vehemently argued and

relied on the order of the Revenue Authorities. Infact, the assessment was

completed u/s. 144 for non-submission of primary documents. We find that the

issue should further be adjudicated before the CIT(A). Both the parties, assessee

and revenue have no objection for remanding back the issue to CIT(A) for

further adjudication on merit.

3.3. Accordingly, we remand back the matter to the CIT(A) for further

adjudication. Needless to say, that the ld. CIT(A) shall provide proper and

adequate opportunity of being heard to the assessee in set aside proceedings.

The evidence/explanation submitted by assessee in its defence shall be admitted

by the ld. CIT(A), and adjudicated on merits in accordance with law. We order

accordingly.

Order pronounced in the open court on 15.02.2023

Sd/- Sd/- (Dr. M. L. Meena) (Anikesh Banerjee) Accountant Member Judicial Member

5 ITA No. 13/Asr/2021 Altaf Husain Shah v. ITO *doc* Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(A), (4) The CIT concerned (5) The Sr. DR, I.T.A.T (6) The Guard File True Copy By Order