SAYAN BISWAS,HOWRAH vs. ITO, WARD 46(1),, KOLKATA

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ITA 154/KOL/2026Status: DisposedITAT Kolkata06 May 2026AY 2022-20237 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that the assessee had sufficient cause for the delay and the CIT(A) ought to have condoned it. The matter was restored to the CIT(A) for disposal on merits.

What were the facts?

The assessee's appeal before the CIT(A) was dismissed due to a 46-day delay. The assessee claimed the delay was due to genuine reasons, including the consultant's son's marriage and non-receipt of legal advice.

What were the issues?

Whether the delay in filing the appeal before the CIT(A) was sufficiently explained and ought to have been condoned.

Which sections of the Income-tax Act were involved?

Section 250,Section 270AA,Section 270A

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, KOLKATA ‘SMC’ BENCH AT KOLKATA

Before: SHRI PRADIP KUMAR CHOUBEY & SHRI RAKESH MISHRA

For Appellant: Ms. Sonal Agarwal, Adv

PER RAKESH MISHRA, ACCOUNTANT MEMBER:

This appeal filed by the assessee is against the order of the Commissioner of Income Tax (Appeals)-NFAC, Delhi [hereinafter referred to as Ld. 'CIT(A)'] passed u/s 250 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) for AY 2022-23 dated 19.12.2025. 2. The assessee is in appeal before the Tribunal raising the following grounds of appeal:

“1. FOR THAT the impugned order under Section 250 of the Income Tax Act, 1961 (hereinafter referred to as "the Act") dated 19th December, 2025 passed by the Learned Commissioner of Income Tax (Appeals) (hereinafter referred to as the "Appellate Authority") in dismissing the appeal filed by the appellant is arbitrary, unjustified, unwarranted and illegal. II. FOR THAT the Learned Appellate Authority erred in dismissing the appeal as not maintainable on the ground of 46 days delay in filing the appeal by holding the same to be abnormal delay and such action of the Learned Appellate Authority is arbitrary, unjustified, unwarranted and illegal. FOR THAT the Learned Appellate Authority erred in rejecting the petition for condonation of delay even though there were genuine and sufficient reason for delay of 46 days in filing the appeal and such action of the Learned Appellate Authority is arbitrary, unjustified, unwarranted and illegal. IV. FOR THAT the Learned Appellate Authority failed to consider the detailed statement of facts as well as grounds of appeal including the submissions which were made before the Learned Appellate Authority by not considering the same and indirectly upholding the levy of penalty under Section 270AA(2) of the Act and such action of the Learned Appellate Authority is arbitrary, unjustified, unwarranted and illegal. V. FOR THAT the said impugned order of the Learned Appellate Authority is otherwise erroneous in law and/or on facts and is liable to be set aside. VI. FOR THAT the appellant craves indulgence to add, amend, alter and/or modify the Grounds of Appeal on or before the hearing of this appeal.”

3.

Brief facts of the case are that the assessment in this case was made at the total income of ₹27,49,883/- u/s 143(3) r.w.s. 144B of the Act as against the returned income of ₹22,96,390/- and a sum of ₹4,53,493/- was added on account of failure on the part of the assessee to furnish the requisite details in support of the compensation to the employees, labour charges, and loading & unloading expenses claimed to be incurred by the assessee for the FY 2021-22 relevant to AY 2022-

23.

In the course of the assessment proceedings, the Assessing Officer (hereinafter referred to as Ld. 'AO') had also initiated penalty proceeding u/s 270A of the Act and was of the view that the assessee had under- reported the income which was in consequence of misreporting by the assessee within the meaning of section 270A(8) and 270A(9) of the Act. Consequently, the penalty order u/s 270AA of the Act was passed on 30.05.2024. The assessee’s application for immunity u/s 270AA of the Act from imposition of penalty u/s 270A of the Act, which was filed on Form No. 68, was not considered as according to the Ld. AO, the penalty u/s 270A of the Act was initiated for under-reporting of income which was in consequence of misreporting and therefore, the immunity u/s 270AA of the Act was not available and the penalty u/s 270A of the Act was imposed. The assessee has filed the copy of assessment order as well as the order u/s 270AA of the Act. However, the copy of penalty order is not filed but the facts as enclosed with the appeal filed before the Ld. CIT(A) are extracted as under:

“2. The order in pursuance of which penalty is being imposed was passed on March 23, 2024 under Section 143(3) read with Section 144B of the Act where the aforesaid addition was made on three counts, viz. (i) The first addition was made in relation to the salary which was claimed by the appellant at Rs. 8,40,000/- and in relation to the said claim of the expense 10 percent of the aforesaid expense was disallowed for the purported failure on part of the assessee to furnish the requisite details in support of the aforesaid expenses claimed to have been incurred by the assessee during the year under consideration. (ii) Similarly a sum of Rs.2,22,895/- being 10 percent of the amount claimed on account of labour charges which was paid by the appellant was added on account of purported failure on part of the assessee to furnish the requisite details in support of the aforesaid expenses claimed to have been incurred by the assessee during the year under consideration. (iii) A sum of Rs. 1,46,598/- was disallowed once again on account of 10 percent of the loading and unloading expenses of Rs. 14,65,980/- which was claimed by the appellant on account of purported failure on part of the assessee to furnish the requisite details in support of the aforesaid expenses claimed to have been incurred by the assessee during the year under consideration.

2.

1 Thus the aforesaid three disallowances, being estimated additions on account of purported failure on part of the appellant to furnish the requisite details in support of the aforesaid expenses claimed to have been incurred by the assessee during the year under consideration, were made by the Assessing Officer based on the information available on record, information collated from the third parties, if any, and the information furnished by the appellant.

3.

As the aforesaid additions were estimated additions and the amount involved in such additions was Rs. 453493 and the tax involved was Rs. 1,41,490/-, the appellant, being advised, did not file any appeal against such order in view of the cost involved in filing and pursing the appeal as well as other considerations and the appellant duly paid the aforesaid amount of Rs. 1,41,490/- on 30th April, 2024. 4. After the aforesaid order was passed, the appellant was issued one notice under Section 270A of the Act dated March 23, 2024 for making submission by April 3, 2024. 5. Upon receipt of the aforesaid notice the appellant submitted that as was known to the Assessing authority the reason for non-production of certain evidence was because of the fact that the appellant's father was detected with cancer and in view of this the appellant could not organize the relevant details which were being maintained by his father and therefore requested the Assessing Authority to grant relief by not imposing penalty as per the show cause notice. This was done by uploading the said message on the portal of the Income Tax Department on 30th April 2024. 6. Moreover the appellant also filed Form 68 in pursuance of Rule 129 of the Income Tax Rules online on April 30, 2024 and after having filed such form informed the NFAC that the appellant is not filing any appeal against the order dated March 23, 2024 under Section 143(3) read with Section 144B of the Act and requested for immunity from penalty proceeding under Section 270A of the Act.

7.

In pursuance of the aforesaid Form which was filed by the appellant, the appellant was in receipt of an order dated May 3, 2024 whereby the appellant was informed that the appellant has not fulfilled the conditions for granting immunity under Section 270AA(2) of the Act and hence was requested to reply on or before May 14, 2024. While issuing such letter the appellant was not granted any opportunity of hearing as to how the appellant was not eligible for granting immunity under the Act.

8.

Upon receipt of the aforesaid letter the appellant submitted a letter dated May 13, 2024 where the appellant brought to the notice of the Assessing Authority that while issuing the notice under Section 156 in pursuance of the original order, credit for TDS amounting to Rs. 17,81,926/- was not given and if that would have been given then the amount which was payable by the appellant would have been reduced to Rs.1,41,489/- which the appellant discharged and requested that as this was a mistake apparent from record the appellant has earlier filed a petition under Section 154 of the Act on May 6, 2024 also in this regard. Moreover the appellant once again requested that immunity from imposition of penalty be granted to the appellant.

9.

Notwithstanding the aforesaid the appellant was in receipt of a show cause notice under Section 272A(1)(d) of the Act dated May 29, 2024 and in response to the same the appellant once again reiterated that the reason for non-production of evidence was because of the disease of the father and therefore the penalty under Section 272A(1)(d) should be dropped.

10.

Thereafter the appellant was granted a personal hearing on September 10, 2024 at 11.45 am vide notice dated September 6, 2024. 11. However on the said date the appellant could not appear because of the technical difficulties and the same was brought to the notice of the Assessing Authority. However without considering the same the Assessing Authority submitted that the appellant did not appear in the video conference hearing and hence the penalty order was passed imposing an amount of Rs. 2,80,980/- under Section 270A of the Act and the appellant, being aggrieved and dissatisfied with the said order, is filing an appeal against the said order imposing penalty before Your Honour.”

4.

It is stated that there was a delay of 46 days in filing the appeal before the Ld. CIT(A) and the Ld. CIT(A) therefore, he dismissed the appeal on account of delay as according to him there was no sufficient cause for the delay and relying upon the decisions in the cases of Perumon Bhagvathy Devaswom, perinadu village v. Bhargavi Amma (Dead) by LRs, (2008) 8 SCC 321, Balwant Singh (Dead) v. Jagdish Singh, (2010) 8 SCC 685, JCIT Vs Tractors & Farm Equipment Ltd. (ITAT, Chennai) 104 ITD 149, CIT vs. Ram Mohan Kabra (2002) 178 CTR (P& H) 274 and University of Delhi Vs Union of India & Ors. In Civil Appeal No. 9408 of 2019 the appeal was dismissed on account of delay.

5.

Aggrieved with the order of the Ld. CIT(A), the assessee has filed the appeal before the Tribunal.

6.

Rival contentions were heard and the submissions made have been examined. The Ld. AR stated that the appeal was delayed as the consultant of the assessee was engaged in the marriage of his son and non-receipt of legal advice constituted sufficient cause for the delay which ought to have been condoned by the Ld. CIT(A) and the appeal should have been decided on merits. The Ld. DR relied upon the order of the Ld. CIT(A) and requested that the same may be upheld.

7.

We have considered the facts of the case, the submissions made and the documents filed. The Bench was of the view that as the assessee had sufficient cause, the delay of 46 days ought to have been condoned by the Ld. CIT(A). Hence, we set aside the order of the Ld. CIT(A) and restore the appeal back to him for disposal of the grounds of appeal taken by the assessee on merits by passing a speaking order. Needless to say, the assessee shall be given a reasonable opportunity of being heard to make any further submission he wants to make in support of his grounds of appeal and shall not seek unnecessary adjournments and rule 46A of the I.T. Rules, 1962 shall also be followed and an opportunity of being heard may be provided to the Ld. AO, if required. Accordingly, the grounds taken by the assessee in the appeal are partly allowed for statistical purposes.

8.

In the result, the appeal filed by the assessee is partly allowed for statistical purposes. Order pronounced in the open Court on 6th May, 2026. [Pradip Kumar Choubey] [Rakesh Mishra] Judicial Member Accountant Member Dated: 06.05.2026 Bidhan (Sr. P.S.)

Copy of the order forwarded to:

1.

Sayan Biswas, 6/2/B/1, Raj Krishna Kumar Street, Belur Math S.O., Howrah, West Bengal, 711202. 2. ITO, Ward-46(1), Kolkata.

3.

CIT(A)-NFAC, Delhi.

4.

CIT-

5.

CIT(DR), Kolkata Benches, Kolkata.

6.

Guard File. //// By order

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