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Income Tax Appellate Tribunal, KOLKATA ‘SMC’ BENCH, KOLKATA
Before: SRI SANJAY GARG & DR. MANISH BORAD
order
: September 22nd, 2023 ORDER
Per Manish Borad, Accountant Member:
This appeal filed by the assessee pertaining to the Assessment Year (in short ‘AY’) 2016-17 is directed against the order passed u/s 250 of the Income Tax Act, 1961 (in short the ‘Act’) by ld. Commissioner of Income-tax (Appeals)-NFAC, Delhi [in I.T.A. No.: 628/KOL/2023 Assessment Year: 2016-17 Diaya Enterpreneur. short ld. ‘CIT(A)’] dated 16.12.2022 arising out of the assessment order framed u/s 143(3) of the Act dated 27.11.2018.
Registry has informed that the appeal is time barred by 128 days. Condonation application has been filed by the assessee. Perusal of the same indicates that the said delay was on account of illness of the assessee who was undergoing medical treatment and which restrained the assessee from furnishing the documents to its tax consultant for filing the appeal. We are satisfied that the assessee has reasonable cause and the delay was not intentional. We therefore, condone the delay and admit the appeal for adjudication. 3. The assessee is in appeal before the Tribunal raising the following grounds: “i. FOR THAT, the facts and in circumstances of the case, the impugned Appeal order u/s 250 of the IT Act, dated 16/12/2022, passed by the Learned CIT(A) NF AC, Delhi is liable to be set aside/modified as the same has been passed arbitrarily; ii. FOR THAT, the facts and in circumstances of the case and without prejudice to any other grounds taken herein, the impugned order for rejection of the Appeal Petition has been passed on the best of judgement basis without proper consideration of facts and clarification and the settled position of law and hence the said order is liable to be set aside/modified; iii. FOR THAT, the registered mail id of the Assessee was under the control of the Accountant, who left the job of Assessee and Assessee got the actual possession of the hard copy of the 1st assessment order u/s 143(3) on 29/01/2019 and filed appeal petition on 28/02/2019, which was within the limit of 30 days, hence there has been neither any late nor any misrepresentation of facts; I.T.A. No.: 628/KOL/2023 Assessment Year: 2016-17 Diaya Enterpreneur. iv. FOR THAT, the impugned original/1st assessment order was passed by the A. O. Ward 43(4)/Kol considering the turnover of the assessment on the basis of Fair Market Value as fixed by the State Govt, for Rs. 2,19,92,000.00, whereas actual sales price received by the assessee of Rs. 1,73,60,450.00 as per prevailing market price of goods. Hence, the addition of Rs. 46,31,550.00 to the income of the assessee is against facts and records. v. FOR THAT the dealer craves leave to put forth any other ground or grounds of appeal
at the time of hearing as earlier.”
4. At the outset, ld. Counsel for the assessee submitted that ld. CIT(A) has dismissed assessee’s appeal in limine for alleged delay of 30 days in filing the appeal before ld. CIT(A). He contended that the assessment order was served on the assessee on 29.01.2019 and the appeal was filed on 28.02.2019 which was well within the prescribed time limit. Therefore, prayer was made to condone the delay in filing the appeal before ld. CIT(A) and direct him for adjudicating the issues on merits.
5. Ld. D/R on the other hand, opposed the request made by ld. Counsel for the assessee.
6. We have heard rival contentions and perused the records placed before us. We notice that the assessee being a partnership firm declared income of Rs. 3,03,910/- in the e-return filed on 27.09.2016 for AY 2016-17. After the case being selected for limited scrutiny through CASS assessment was framed u/s 143(3) of the Act on 27.11.2018. On perusal of the assessment order, we notice that ld. CIT(A) has referred to the letter given by ITO, Ward- 43(4) Kolkata wherein it has been stated that the assessment order was sent to the assessee through e-mail on 27.11.2018 itself i.e.