MD METRO TRANSIT PVT LTD,NEW DELHI vs. ITO WARD - 16(4), NEW DELHI

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘E’: NEW DELHI BEFORE, SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA No.1581/Del/2020 (ASSESSMENT YEAR 2014-15) ITA No.1582/Del/2020 (ASSESSMENT YEAR 2014-15) Income Tax Officer, Md. Metro Transit Pvt. Ward-16(4) Ltd. Delhi 808, Devika Tower Vs. Nehru Place New Delhi-110 019 PAN-AAICM 3578Q (Appellant) (Respondent)

Appellant by Mr. Sachin Jain, CA Respondent by Mr. Jitender Chand, Senior Departmental Representative (“SR- DR” for short)

ORDER PER ANADEE NATH MISSHRA, AM: (A) Assessment order dated 27/12/2016 was passed by the

Assessing Officer (“AO”, for short) wherein the assessee’s income

was assessed at Rs.96,35,040/- as against returned income of

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ITA Nos.1581 and 1582 /Del/2020 MD Metro Transit Pvt. Ltd. vs. ITO Rs.27,89,360/-. The aforesaid assessment order was passed ex-

parte qua the assessee. The assessee’s appeal against the aforesaid

assessment order was dismissed by Ld. CIT(A) vide impugned

appellate order dated 29/11/2019. The Ld. CIT(A) dismissed assesse’s appeal in limine without going into merits. The Ld. CIT(A)

observed that the appeal filed by the assessee was late; she decided

against condoning the delay in filing of the appeal u/s 249(3) of Income Tax Act, and dismissed the appeal in limine on limitation

ground. The present appeal before us vide ITA No.1581/Del/2020

is filed by the assessee against the aforesaid impugned appellate

order dated 29/11/2019 of the Ld. CIT(A).

(A.1) Separately, proceedings were also initiated by the AO,

under section 271(1)(c) of Income Tax Act for levy of penalty. Vide

order dated 28/06/2017, the AO levied penalty amounting to

Rs.21,12,981/- under section 271(1)(c) of Income Tax Act. The

assessee’s appeal against the aforesaid order dated 28/06/2017 was also dismissed by the Ld. CIT(A) in limine vide impugned

appellate order dated 22/02/2029 without going into the merits;

observing that the assessee was not interested in pursuing the

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ITA Nos.1581 and 1582 /Del/2020 MD Metro Transit Pvt. Ltd. vs. ITO appeal. The present appeal before us vide ITA No.1582/Del/2020

has been filed by the assessee against the aforesaid impugned

appellate order dated 22/02/2019 of the Ld. CIT(A).

(A.2) For the sake of convenience, both the present appeals

before us vide ITA No.1581/Del/2020 and ITA No.1582/Del/2020

are hereby disposed off through this common and consolidated

order.

(B) At the time of hearing before us, the Ld. Authorized

Representative (“Ld. AR” for short) for the assessee submitted

before us that the aforesaid assessment order dated 27/12/2016

was not served on the assessee; because of the fact that the

assessment order was sent by the Assessing Officer by post on

wrong address. He further submitted that the assessee obtained

certified copy of the assessment order in order to file appeal in the

office of the Ld. CIT(A). He furthermore submitted that the appeal

filed by the assessee in the office of the Ld. CIT(A) was within the

time prescribed u/s 249(2) of Income Tax Act having regard to the

date on which certified copy of the assessment order was provided

by the Assessing Officer to the assessee, if the date of service of the Page 3 of 7

ITA Nos.1581 and 1582 /Del/2020 MD Metro Transit Pvt. Ltd. vs. ITO assessment order is reckoned to be the same as the date on which

the certified copy of the assessment order was provided by the

Assessing Officer. He also submitted that having regard to section

250(6) of Income Tax Act, the Ld. CIT(A) erred in dismissing the

assessee’s appeals vide impugned appellate orders dated

29/11/2019 and 22/02/2019 in limine, without going into merits.

For this purpose, he specifically drew our attention to provisions

u/s 250(6) of Income Tax Act wherein the Ld. CIT(A) is required to

pass the appellate orders in writing stating the point for

determination, the decision thereon and the reason for the

decision. Therefore, he contended, the aforesaid appellate orders

dated 29/11/2019 and 22/02/2019 were inconsistent with section

250(6) of Income Tax Act as the Ld. CIT(A) did not pass impugned

appellate orders on merits through speaking orders. He submitted

that impugned appellate orders 29/11/2019 and 22/02/2019

should be set aside and the AO should be directed to pass fresh

assessment order in accordance with law, after providing

reasonable opportunity to the assessee. The ld. Sr. DR for Revenue

did not dispute the submissions and the contentions made on

behalf of the assessee by the Ld. Senior AR for assessee. He agreed Page 4 of 7

ITA Nos.1581 and 1582 /Del/2020 MD Metro Transit Pvt. Ltd. vs. ITO with the assessee’s submissions that the impugned appellate

orders dated 29/11/2019 and 22/02/2019 of the Ld. CIT(A)

should be set aside and the AO should be directed to pass fresh

assessment order in accordance with law, after providing

reasonable opportunity to the assessee.

(C) In view of the foregoing; and as representatives of both sides

are in agreement with this, and in the specific facts and

circumstances of these present appeals before us, we hereby set

aside the impugned appellate order dated 29/11/2019 of the Ld. CIT(A); and we direct the Assessing Officer to pass a denovo

assessment order in accordance with law after providing reasonable

opportunity to the assessee. Thus, issues in dispute in appeal

before us vide ITA No.1581/Del/2020 having regard to quantum

additions made in the assessment order are restored back to the file of the Assessing Officer with the direction to pass a denovo

assessment order in accordance with law after providing reasonable

opportunity to the assessee.

(C.1) Vide foregoing paragraph (C) of this order, we have

restored the issues in dispute having regard to quantum additions Page 5 of 7

ITA Nos.1581 and 1582 /Del/2020 MD Metro Transit Pvt. Ltd. vs. ITO made in the assessment order back to the file of the Assessing

Officer with the direction to pass a denovo assessment order in

accordance with law after providing reasonable opportunity to the

assessee. Accordingly, the quantum additions do not survive at

present. Consequently, penalty levied under section 271(1)(c) of

Income Tax Act also do not survive at present. In the fitness of

things, we set aside the impugned appellate order dated

22/02/2019 of Ld. CIT(A) and cancel the penalty levied under

section 271(1)(c) of Income Tax Act.

(C.2) However, by way of abundant caution, we hereby clarify

that the Assessing Officer will be at liberty to initiate penalty

proceedings u/s 271(1)(c) of Income Tax Act in accordance with the

applicable law and the relevant facts and circumstances, if deemed fit, after consequential denovo assessment proceedings are taken up

in pursuance of the aforesaid directions in foregoing paragraph (D)

of this order.

(D) For statistical purposes, appeal vide ITA No.1581/Del/2020

is treated as partly allowed and appeal vide ITA No.1582/Del/2020

is treated as allowed.

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ITA Nos.1581 and 1582 /Del/2020 MD Metro Transit Pvt. Ltd. vs. ITO (E) This order was already pronounced on 07/02/2023 in

Open Court, in the presence of representatives of both sides, after

conclusion of the hearing and is signed today on 07/02/2023.

Sd/- Sd/- (KUL BHARAT) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 07/02/2023 Pk Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT

ASSISTANT REGISTRAR ITAT NEW DELHI

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