TULSI DAS,NOIDA UP vs. ITO WARD 3(5), NOIDA UP
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Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC’ NEW DELHI
Captioned appeals are by the same assessee and arise out of two
separate orders of learned Commissioner of Income-Tax (Appeals)-1,
Noida. One of the appeals arises out of quantum proceedings and the
other arises out of penalty proceedings under Section 271(1)(c) of the
Income-tax Act, 1961. However, both the appeals relate to assessment
year 2009-10.
2 ITA Nos.6427 & 6428/Del./2019
ITA No.6427/Del/2019 (quantum appeal):
Briefly the facts qua the present appeal are, assessee is a resident
individual. Based on AIR information indicating that assessee had
purchased immoveable property worth Rs.46,20,000 during the year
under consideration, assessing officer reopened the assessment under
Section 147 of the Act. Alleging that the assessee did not comply with
the notice issued under Section 142(1) of the Act, the assessing officer
proceeded to comply the assessment under Section 144 read with
section 147 of the Act, to the best of his judgment. While doing so, he
added back an amount of Rs.46,20,000 as unexplained investment
under Section 69 of the Act. Against the assessment order so passed,
the assessee preferred an appeal before learned Commissioner
(Appeals). However, by the impugned order, learned Commissioner
(Appeals) dismissed the appeal of the assessee in limine for alleged
non-compliance with the mandatory provisions of section 249(4)(b) of
the Act.
We have heard Shri A.K. Kundra, learned counsel appearing for
the assessee and Shri Om Parkash, learned Departmental
Representative.
3 ITA Nos.6427 & 6428/Del./2019
Undisputedly, learned Commissioner (Appeals) has dismissed
assessee’s appeal in limine due to alleged non-compliance with the
provisions contained under Section 249(4)(b) of the Act.
On a careful reading of the aforesaid provision, I find that it
speaks of a situation, when, an appeal cannot be entertained in a case,
where no return has been filed by the assessee and the assessee has
paid an amount equal to the amount of advance-tax which was payable
by him. Thus, it is apparent, learned Commissioner (Appeals) has
proceeded on the basis that for the assessment year under dispute,
assessee had not filed any return of income. Whereas, material placed
before me clearly indicates that for the assessment year under dispute,
assessee filed his return of income on 02.02.2010, declaring income
of Rs.1,90,040. In fact, return of income filed by assessee was selected
for scrutiny and assessment in case of the assessee was completed
under Section 143(3) of the Act vide order dated 24.11.2011,
accepting the returned income. It is manifest, learned Commissioner
(Appeals) has totally misconceived the facts while dismissing
assessee’s appeal in limine by invoking provisions of section
249(4)(b) of the Act, which is not at all applicable to the facts of the
4 ITA Nos.6427 & 6428/Del./2019
present appeal. Therefore, I have no hesitation in setting aside the
impugned order of learned Commissioner (Appeals) and restoring the
matter back to his file for deciding the issues raised by the assessee on
merits, after due and reasonable opportunity of being heard to the
assessee. Grounds are allowed for statistical purposes.
In the result, the appeal is allowed for statistical purposes.
ITA No.6828/Del/2019:
This appeal arises out of penalty proceedings under section
271(1)(c) of the Act. There is a delay of 202 days in filing the present
appeal.
After considering the submissions of the parties, I am satisfied
that the delay in filing the appeal is due to reasonable cause.
Therefore, I admit the appeal for adjudications after condoning the
delay. As could be seen from the impugned order, learned
Commissioner (Appeals) has dismissed assessee’s appeal in limine
due to non-payment of appeal fees. However, while considering
assessee’s quantum appeal in ITA No.6427/Del/2019 in the earlier
part of the order, I have restored the issue back to the file of learned
Commissioner (Appeals) for deciding the issues on merits.
5 ITA Nos.6427 & 6428/Del./2019
Considering the fact that imposition of penalty under Section
271(1)(c) of the Act would depend upon the outcome of the quantum
appeal, which is still pending, I am inclined to set aside the impugned
order of learned Commissioner (Appeals) and restore the issue relating
to imposition of penalty under Section 271(1)(c) of the Act to the
assessing officer for considering afresh depending upon the result in
quantum appeal. Grounds are allowed for statistical purposes.
In the result, both appeals are allowed for statistical purposes.
Order pronounced in the open court on 29th July, 2022. Sd/- (SAKTIJIT DEY) JUDICIAL MEMBER Dated: 29th July, 2022. Mohan Lal Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi
6 ITA Nos.6427 & 6428/Del./2019
Sl. No. Particulars Date 1. Date of dictation (Order drafted through Dragon software): 26.07.2022 2. Date on which the draft of order is placed before the 27.07.2022 Dictating Member: 3. Date on which the draft of order is placed before the 29.07.2022 other Member: 4. Date on which the approved draft of order comes to 29.07.2022 the Sr. PS/PS: 5. Date of which the fair order is placed before the 29.07.2022 Dictating Member for pronouncement: 6. Date on which the final order received after having 29.07.2022 been singed/pronounced by the Members: 7. Date on which the final order is uploaded on the 29.07.2022 website of ITAT: 8. Date on which the file goes to the Bench Clerk 29.07.2022 9. Date on which files goes to the Head Clerk: 10. Date on which file goes to the Assistant Registrar for signature on the order: 11. Date of dispatch of order:
