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Income Tax Appellate Tribunal, DELHI “SMC” BENCH: NEW DELHI
Before: SHRI KUL BHARAT
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI “SMC” BENCH: NEW DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA Nos.3048 to 3051/Del/2022 [Assessment Years : 2009-10 to 2012-13] Rishabh Mining Pvt.Ltd., vs ITO, C/o-IPSO Legal, H-35, Ward-21(1), 1st Floor, Jangpura Extension, New Delhi. New Delhi-110014. PAN-AAACR5532P APPELLANT RESPONDENT Appellant by S/Shri Rajiv Saxena & Shyam Sunder, Advocates Respondent by Shri Sanjay Nargas, Sr.DR Date of Hearing 16.02.2023 Date of Pronouncement 23.02.2023 ORDER PER KUL BHARAT, JM : This bunch of four appeals filed by the assessee is directed against the different orders of Ld. CIT(A), National Faceless Appeal Centre (“NFAC”), Delhi dated 23.11.2022 for the assessment years 2009-10 to 2012-13. Since identical grounds have been raised, all four appeals filed by the assessee are taken up together for hearing and are being disposed off by way of consolidated order for the sake of brevity. ITA No.3048/Del/2022 [Assessment Year : 2009-10]
First, I take up ITA No. 3048/Del/2022 filed by the assessee pertaining to Assessment Year : 2009-10. The assessee has raised following grounds of appeal:-
“That the Ld. CIT(A), NFAC has grossly erred on facts and in law and failed to understand that depreciation is a right of the assessee and was allowed to it in earlier years upto AY 2008-09 and subsequent assessment years from 2013-14 onwards and AO has grossly erred in
disturbing the return U/S 143(1) which is not error to be adjusted in that provision. 2. That the Ld. CIT(A), NFAC has grossly erred on facts and in law in dismissing the appeal of the assessee without providing sufficient opportunity of being heard and passed an Ex-parte order. 3. That the Ld. CIT(A), NFAC has grossly erred on facts and in law by ignoring the fact that Intimation u/s 143(1) was not received by the assessee and the same was obtained through E-mail on 10.11.2020 from CPC and appeal was filed on 17.11.2020 i.e., within 30 days from the date of receiving the intimation as provided under section 249(2) of the IT Act. Therefore, there was no delay in filing of appeal if counted from the date of receipt of order. 4. That the Ld. CIT(A), NFAC has erred on facts and in law in not considering the submissions of assessee which were filed on merits of the case and arbitrarily dismissed the appeal of the assessee for want of condonation of delay application which was not required to be filed in the present case. The above grounds of appeals are independent of and without prejudice to each other. That the appellant craves leave to add, alter, amend or withdraw all or any grounds herein or add any further grounds as may be considered necessary either before or during the hearing of these grounds.” 3. Ld. Counsel for the assessee submitted that Ld.CIT(A) dismissed the appeal on the ground of delay in filing the appeal by more than four years.
Facts giving rise to the present appeal are that Central Processing Centre (“CPC”) processed the return of income of the assessee u/s 143(1) of the Income Tax Act, 1961 (“the Act”). Thereby, the Assessing Officer (“AO”) assessed income of the assessee at Rs.8,32,460/- vide order dated 04.11.2016.
Aggrieved against the order of AO, the assessee preferred appeal before Ld.CIT(A), who after considering the submissions, dismissed the appeal of the assessee on the ground of delay in filing the appeal by more than four years. It is also noted by Ld.CIT(A) that no application seeking condonation of delay was filed. He therefore, dismissed the appeal of the assessee on the ground of delay. It is noteworthy that the assessee had also moved an application u/s 154 of the Act, seeking rectification of the intimation issued u/s 143(1) of the Act.
Aggrieved against the order of Ld.CIT(A), the assessee preferred appeal before the Tribunal.
Ld. Counsel for the assessee submitted that the claim of the depreciation is the legal right of the taxpayer. It was stated that the intimation was not received by the assessee and same was obtained through e-mail on 10.11.2020 from CPC and the appeal was filed on 17.11.2020 from the date of receiving the intimation as provided u/s 249(2) of the Act. Therefore, there was no delay in filing of the appeal, if counted from the date of receipt of the order. He further submitted that in the interest of justice, the issue related to depreciation be restored to the lower authorities for decision on merit.
On the other hand, Ld. Sr. DR opposed these submissions and supported the orders of the authorities below. He contended that the assessee failed to file any application for condonation of delay. There is a delay of more than four years in filing the appeal by the assessee. He pointed out that the assessee had sought rectification u/s 154 of the Act. Thus, it is wrong to state that the impugned intimation was not received.
I have heard Ld. Authorized Representatives of the parties and perused the material available on record. Ld. Counsel for the assessee submitted that the assessee did not receive intimation. It was only obtained through e-mail on 10.11.2020 from CPC. I find that vide letters dated 26.06.2018, 01.03.2019 and 23.12.2020, the assessee had requested assessing authority for rectification of mistake. Then again on 30.11.2021 and 22.02.2022, similar requests have been made by the assessee. Therefore, it cannot be inferred that the assessee had not received the intimation issued by the Department. However, considering the totality of the facts and to sub-serve the principles of natural justice, I hereby set aside the impugned order and restore the issue to the file of Ld.CIT(A) to re-consider the issue related to delay in filing the appeal. Considering the fact that the assessee itself has been pursuing rectification u/s 154 of the Act. The assessee would be at liberty to file a proper application seeking condonation of delay. Therefore, Ld.CIT(A) would decide the issue in accordance with law. The grounds raised by the assessee are allowed for statistical purposes.
In the result, the appeal of the assessee is allowed for statistical purposes.
ITA No.3049/Del/2022 [Assessment Year : 2010-11]
Now, I take up ITA No.3049/Del/2022 filed by the assessee pertaining to Assessment Year : 2010-11. The assessee has raised following grounds of appeal:-
“That the Ld. CIT(A), NFAC has grossly erred on facts and in law and failed to understand that depreciation is a right of the assessee and was allowed to it in earlier years upto AY 2008-09 and subsequent assessment years from 2013-14 onwards and AO has grossly erred in disturbing the return U/S 143(1) which is not error to be adjusted in that provision.
That the Ld. CIT(A), NFAC has grossly erred on facts and in law in dismissing the appeal of the assessee without providing sufficient opportunity of being heard and passed an Ex-parte order. 3. That the Ld. CIT(A), NFAC has grossly erred on facts and in law by ignoring the fact that Intimation u/s 143(1) was not received by the assessee and the same was obtained through E-mail on 10.11.2020 from CPC and appeal was filed on 17.11.2020 i.e., within 30 days from the date of receiving the intimation as provided under section 249(2) of the IT Act. Therefore, there was no delay in filing of appeal if counted from the date of receipt of order. 4. That the Ld. CIT(A), NFAC has erred on facts and in law in not considering the submissions of assessee which were filed on merits of the case and arbitrarily dismissed the appeal of the assessee for want of condonation of delay application which was not required to be filed in the present case. The above grounds of appeals are independent of and without prejudice to each other. That the appellant craves leave to add, alter, amend or withdraw all or any grounds herein or add any further grounds as may be considered necessary either before or during the hearing of these grounds.” 12. I have heard Ld. Authorized representatives of the parties and perused the material available on record. I find that the facts and issues are similar and identical as in ITA No.3048/Del/2022 [AY 2009-10]. Ld. Representatives of the parties have adopted the same arguments in respect of grounds of appeal. The issue was restored to the file of Ld.CIT(A) for reconsideration by observing as under:-
“I have heard Ld. Authorized Representatives of the parties and perused the material available on record. Ld. Counsel for the assessee submitted that the assessee did not receive intimation. It was only obtained through e-mail on 10.11.2020 from CPC. I find that vide letters dated 26.06.2018, 01.03.2019 and 23.12.2020, the assessee had requested assessing Page | 5
authority for rectification of mistake. Then again on 30.11.2021 and 22.02.2022, similar requests have been made by the assessee. Therefore, it cannot be inferred that the assessee had not received the intimation issued by the Department. However, considering the totality of the facts and to sub-serve the principles of natural justice, I hereby set aside the impugned order and restore the issue to the file of Ld.CIT(A) to re-consider the issue related to delay in filing the appeal. Considering the fact that the assessee itself has been pursuing rectification u/s 154 of the Act. The assessee would be at liberty to file a proper application seeking condonation of delay. Therefore, Ld.CIT(A) would decide the issue in accordance with law. The grounds raised by the assessee are allowed for statistical purposes.” 12.1. As the facts are identical and no change into the facts and circumstances has been pointed by the assessee, the grounds raised in this appeal filed by the assessee are allowed for statistical purposes. My decision in ITA No.3048/Del/2022 [AY 2009-10] would apply Mutatis Mutandi in this appeal filed by the assessee as well.
In the result, the appeal of the assessee is allowed for statistical purposes.
ITA No.3050/Del/2022 [Assessment Year : 2011-12]
Now, I take up ITA No. 3050/Del/2022 filed by the assessee pertaining to Assessment Year : 2011-12. The assessee has raised following grounds of appeal:-
“That the Ld. CIT(A), NFAC has grossly erred on facts and in law and failed to understand that depreciation is a right of the assessee and was allowed to it in earlier years upto AY 2008-09 and subsequent assessment years from 2013-14 onwards and AO has grossly erred in disturbing the return U/S 143(1) which is not error to be adjusted in that provision.
That the Ld. CIT(A), NFAC has grossly erred on facts and in law in dismissing the appeal of the assessee without providing sufficient opportunity of being heard and passed an Ex-parte order. 3. That the Ld. CIT(A), NFAC has grossly erred on facts and in law by ignoring the fact that Intimation u/s 143(1) was not received by the assessee and the same was obtained through E-mail on 10.11.2020fromCPCandappealwasfiledon 17.11.2020 i.e., within 30 days from the date of receiving the intimation as provided under section 249(2) of the IT Act. Therefore, there was no delay in filing of appeal if counted from the date of receipt of order. 4. That the Ld. CIT(A), NFAC has erred on facts and in law in not considering the submissions of assessee which were filed on merits of the case and arbitrarily dismissed the appeal of the assessee for want of condonation of delay application which was not required to be filed in the present case. The above grounds of appeals are independent of and without prejudice to each other. That the appellant craves leave to add, alter, amend or withdraw all or any grounds herein or add any further grounds as may be considered necessary either before or during the hearing of these grounds.” 15. I have heard Ld. Authorized representatives of the parties and perused the material available on record. I find that the facts and issues are similar and identical as in ITA No.3048/Del/2022 [AY 2009-10]. Ld. Representatives of the parties have adopted the same arguments in respect of grounds of appeal. The issue was restored to the file of Ld.CIT(A) for reconsideration by observing as under:-
“I have heard Ld. Authorized Representatives of the parties and perused the material available on record. Ld. Counsel for the assessee submitted that the assessee did not receive intimation. It was only obtained through e-mail on 10.11.2020 from CPC. I find that vide letters dated 26.06.2018, 01.03.2019 and 23.12.2020, the assessee had requested assessing Page | 7
authority for rectification of mistake. Then again on 30.11.2021 and 22.02.2022, similar requests have been made by the assessee. Therefore, it cannot be inferred that the assessee had not received the intimation issued by the Department. However, considering the totality of the facts and to sub-serve the principles of natural justice, I hereby set aside the impugned order and restore the issue to the file of Ld.CIT(A) to re-consider the issue related to delay in filing the appeal. Considering the fact that the assessee itself has been pursuing rectification u/s 154 of the Act. The assessee would be at liberty to file a proper application seeking condonation of delay. Therefore, Ld.CIT(A) would decide the issue in accordance with law. The grounds raised by the assessee are allowed for statistical purposes.” 15.1. As the facts are identical and no change into the facts and circumstances has been pointed by the assessee, the grounds raised in this appeal filed by the assessee are allowed for statistical purposes. My decision in ITA No.3048/Del/2022 [AY 2009-10] would apply Mutatis Mutandi in this appeal filed by the assessee as well.
In the result, the appeal of the assessee is allowed for statistical purposes.
ITA No.3051/Del/2022 [Assessment Year : 2012-13]
Now, I take up ITA No. 3051/Del/2022 filed by the assessee pertaining to Assessment Year : 2012-13. The assessee has raised following grounds of appeal:-
“That the Ld. CIT(A), NFAC has grossly erred on facts and in law and failed to understand that depreciation is a right of the assessee and was allowed to it in earlier years upto AY 2008-09 and subsequent assessment years from 2013-14 onwards and AO has grossly erred in disturbing the return U/S 143(1) which is not error to be adjusted in that provision.
That the Ld. CIT(A), NFAC has grossly erred on facts and in law in dismissing the appeal of the assessee without providing sufficient opportunity of being heard and passed an Ex-parte order. 3. That the Ld. CIT(A), NFAC has grossly erred on facts and in law by ignoring the fact that Intimation u/s 143(1) was not received by the assessee and the same was obtained through E-mail on 10.11.2020 from CPC and appeal was filed on 17.11.2020 i.e., within 30 days from the date of receiving the intimation as provided under section 249(2) of the IT Act. Therefore, there was no delay in filing of appeal if counted from the date of receipt of order. 4. That the Ld. CIT(A), NFAC has erred on facts and in law in not considering the submissions of assessee which were filed on merits of the case and arbitrarily dismissed the appeal of the assessee for want of condonation of delay application which was not required to be filed in the present case. The above grounds of appeals are independent of and without prejudice to each other. That the appellant craves leave to add, alter, amend or withdraw all or any grounds herein or add any further grounds as may be considered necessary either before or during the hearing of these grounds.” 18. I have heard Ld. Authorized representatives of the parties and perused the material available on record. I find that the facts and issues are similar and identical as in ITA No.3048/Del/2022 [AY 2009-10]. Ld. Representatives of the parties have adopted the same arguments in respect of grounds of appeal. The issue was restored to the file of Ld.CIT(A) for reconsideration by observing as under:-
“I have heard Ld. Authorized Representatives of the parties and perused the material available on record. Ld. Counsel for the assessee submitted that the assessee did not receive intimation. It was only obtained through e-mail on 10.11.2020 from CPC. I find that vide letters dated 26.06.2018, 01.03.2019 and 23.12.2020, the assessee had requested assessing Page | 9
authority for rectification of mistake. Then again on 30.11.2021 and 22.02.2022, similar requests have been made by the assessee. Therefore, it cannot be inferred that the assessee had not received the intimation issued by the Department. However, considering the totality of the facts and to sub-serve the principles of natural justice, I hereby set aside the impugned order and restore the issue to the file of Ld.CIT(A) to re-consider the issue related to delay in filing the appeal. Considering the fact that the assessee itself has been pursuing rectification u/s 154 of the Act. The assessee would be at liberty to file a proper application seeking condonation of delay. Therefore, Ld.CIT(A) would decide the issue in accordance with law. The grounds raised by the assessee are allowed for statistical purposes.” 18.1. As the facts are identical and no change into the facts and circumstances has been pointed by the assessee, the grounds raised in this appeal filed by the ITA assessee are allowed for statistical purposes. My decision in No.3048/Del/2022 [AY 2009-10] would apply Mutatis Mutandi in this appeal filed by the assessee as well.
In the result, the appeal of the assessee is allowed for statistical purposes.
In the final result, all four appeals filed by the assessee in ITA Nos. 3048 to 20. 3051/Del/2022 [Assessment Years 2009-10 to 2012-13] are allowed for statistical purposes.
Order pronounced in the open Court on 23rd February, 2023.
Sd/-
(KUL BHARAT) JUDICIAL MEMBER * Amit Kumar *