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Income Tax Appellate Tribunal, “A” BENCH KOLKATA
Before: Shri Sanjay Garg & Dr. Manish Borad
order : July 13, 2023 आदेश / ORDER संजय गग�, �या�यक सद�य �वारा / Per Sanjay Garg, Judicial Member: The present appeal has been preferred by the assessee against the order dated 23.11.2021 of the National Faceless Appeal Centre (hereinafter referred to as the ‘CIT(A)’) passed u/s 250 of the Income Tax Act (hereinafter referred to as the ‘Act’).
There is a delay in filing the present appeal. A separate application for condonation of delay has been filed, wherein, it has been pleaded that the impugned order was passed by the CIT(A) on 23.11.2021 during the Covid period and that the assessee did not receive any email or copy of the order. The copy of the order was originally served by uploading the same on the Income Tax portal. That subsequently on the advice of legal Assessment year: 2010-11 Samridhi Stocks Pvt. Ltd consultant, the assessee checked the Income Tax portal on 21.01.2023 and it was noticed that the order has already been passed. However, the assessee immediately from the date of notice of the order preferred the present appeal. The ld. counsel therefore has submitted that the delay in filing the present appeal was not intentional, rather, due to circumstances that the assessee was not aware of the passing of the impugned order of the CIT(A). The ld. counsel has relied upon the decision of the Coordinate Bench of the Tribunal in the case of West Bengal Power Development Corporation Limited vide ITA Nos. 333, 334, 335 & 336/KOL/2020 pronounced on 20.01.2023 wherein in the identical facts and circumstances of the case, the delay has been condoned by the Coordinate Bench of the Tribunal by observing as under:
The ld AR submitted before the bench that the hard copy of the appellate order dated 27.11.2019 was not served upon the assessee and the order was in fact uploaded in the ITBA portal of assessee's company however the concerned staff of the assessee company omitted to look at the ITBA portal which has resulted into late filing of appeal. The Ld. A.R therefore prayed that the delay may kindly be condoned and the appeal of the assessee may kindly be admitted for adjudication by relying on the decision of Collector, Land Acquisition Vs. Mst. Katiji(1987)167 ITR 471(SC). The ld DR on the other hand strongly opposed the condonation of delay in filing the appeal and prayed that the appeal of the assessee may be dismissed as being barred by limitation. After perusing the condonation petition and after hearing the rival contentions of both the parties and reasons attributable to delay in filing the appeal the delay of filing the appeal, we of the considered view that the delay is purely due to the reasons which cannot be attributed to the assessee. Therefore, we condone the delay of 52 days and admit the appeal for adjudication.
Considering the above submissions, the delay in filing the present appeal is hereby condoned. Assessment year: 2010-11 Samridhi Stocks Pvt. Ltd 3. The assessee in this appeal has taken the following grounds of appeal:
“1. For that the Ld. CIT(A) erred in confirming the action of AO since the assessment was reopened beyond four years from end of the relevant assessment year when the original assessment was completed u/s. 143(3) and there was no whisper in the reasons recorded that income has escaped assessment on account of failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment. 2 For that the Ld. CIT(A) erred in confirming the action of AO only on the basis of information from Investigation Wing without any tangible material or application of his own mind and therefore the reassessment proceedings initiated without his own satisfaction were bad in law.
For that on the facts and circumstances of the case, the reopening of assessment was unjustified and not in accordance with law.
4. For that the Ld. CIT(A) erred in confirming the assessment completed by the Ld. A.O and making addition of some other amount when there was no addition of any escaped income for which the assessment was reopened.
For that on the facts and circumstances of the case, the Ld. CIT(A) should have deleted the addition made by the Ld. AO by disallowing commodity transaction loss of Rs. 50,84,830/- when full details were filed.
For that the order of the AO be modified and the assessee be given relief prayed for.”
At the outset, the ld. counsel has submitted that the reopening in this case was bad in law. He has submitted that the assessment order involved in this case is A.Y 2010-11 and the reasons of the reopening of the assessment were recorded on 24.03.2017. He has further submitted that the original assessment in this case was carried out u/s 143(3). He therefore has submitted that Proviso to section 147 of the Act is attracted in this case which provides that where original assessment has been carried out u/s 143(3) of the Act, no action shall be taken u/s 147 of the Act after the expiry of four years from the end of the relevant