SMT. RAVINDER KAUR BHATIA,MUMBAI vs. ITO WARD 19 (3)(2), MUMBAI

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ITA 7003/MUM/2019Status: DisposedITAT Mumbai10 January 2022AY 2007-085 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal condoned the delay in filing the appeal, finding a bonafide cause due to the non-communication of the CIT(A)'s order. The Tribunal also held that the CIT(A) erred in dismissing the appeal without considering that it was filed against a penalty under Section 271(1)(c), not Section 271F.

What were the facts?

The assessee filed an appeal before the ITAT after a significant delay, claiming non-receipt of the CIT(A)'s order. The CIT(A) had dismissed the assessee's earlier appeal against a penalty order for non-prosecution, mistakenly noting it was against Section 271F instead of Section 271(1)(c).

What were the issues?

Whether the delay in filing the appeal should be condoned and whether the CIT(A) correctly identified the section under which the penalty was levied when dismissing the appeal.

Which sections of the Income-tax Act were involved?

Section 271(1)(c),Section 271F,Section 250(6)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, MUMBAI BENCH “D” MUMBAI

Before: MS. SUCHITRA RAGHUNATH KAMBLE & SHRI AMARJIT SINGH

For Appellant: Mr. Hariom Tulsian, AR
For Respondent: Ms. Neha Thakur, DR
Hearing: 23/12/2021Pronounced: 10/01/2022

ORDER PER AMARJIT SINGH, A.M. The present appeal is filed by the assessee against the order of the Commissioner of Income Tax (Appeals)-34, Mumbai [in short ‘CIT(A)’] arises out of assessment completed u/s 143(3) r.w.s. 153A of the Income Tax Act, 1961 (in short the Act).

2.

The grounds of appeal raised by the assessee are as under :

1. On the facts and circumstance of the case, it is prayed that the delay in filing of appeal may kindly be condone.

2. On the facts and circumstances of the case, the learned Commissioner of Income-tax (Appeals) has erred, both on facts and in law, in ignoring the contention of the appellant that the appeal was filed against the order Smt. Ravinder Kaur Bhatia 2 passed under section 271(1)(c) of the I.T. Act, 1961 and not against the order passed under section 271F of the I.T. Act, 1961. 3. On the facts and circumstances of the case, the learned Commissioner of Income-tax (Appeals) has erred, both on facts and in law, in rejecting the contention of the appellant that the order passed by the AO levying penalty is not sustainable in the eye of law as no satisfaction, as required under the law, was recorded by the AO in the assessment order." 3. In this case, there was a delay in filing the appeal by 1715 days and the assessee has filed application for condonation of delay alongwith affidavit dated 29th October 2021. In the affidavit, it is submitted that order u/s 271(1)(c) of the act was passed on 28th March 2015 for the assessment year 2007-08 and the assessee filed appeal against the aforesaid order before the Ld. CIT(A) on 17th April 2013. However, there was no communication from the office of the Ld. CIT(A)-34 about the status of appeal filed by the assessee. Since nothing was heard from the Ld. CIT(A) in spite of writing a number of letters, therefore, the assessee filed grievance letter before the Chief Commissioner of Income Tax-8, Mumbai to expedite the hearing of appeal filed by the assessee before the Ld. CIT(A)-34, Mumbai. Thereafter, on 19th September 2019, the Ld. Chief Commissioner of Income Tax-8, Mumbai informed the assessee that appeal filed had been disposed off by the Ld. CIT(A). Within 60 days of receipt of communication from the Ld. Chief Commissioner of Income Tax-8, Mumbai, the assessee has filed the instant appeal before the ITAT. In the light of the above facts and circumstances, the Ld. counsel contended that delay in filing the appeal was beyond the control of the assessee as order of Ld. CIT(A) was not received and there was no deliberate attempt by the assessee to make delay in filing the instant appeal.

Smt. Ravinder Kaur Bhatia 3

4.

Heard both the sides and perused the material on record. It is demonstrated from the facts and material elaborated above that because of non- communication of the order of the Ld. CIT(A), the assessee could not file the instant appeal timely. We have also gone through the decision of Hon’ble Supreme Court in the case of Collector Land Acquisition v. Mst. Katiji & Ors – Civil Appeal No. 460 of 1987 dated 19.12.1987, wherein held that sufficient cause for the purpose of condonation of delay should be interpreted with a view to do even handed justice on merit in preference to approach which scuttles a decision on merit.

In the light of the above facts and findings, we consider that there is a bonafide cause for delay in filing the appeal therefore, we condone the delay in filing this appeal.

Ground No. 2 & 3 2. On the facts and circumstances of the case, the learned Commissioner of Income-tax (Appeals) has erred, both on facts and in law, in ignoring the contention of the appellant that the appeal was filed against the order passed under section 271(1)(c) of the I.T. Act, 1961 and not against the order passed under section 271F of the I.T. Act, 1961.

3.

On the facts and circumstances of the case, the learned Commissioner of Income-tax (Appeals) has erred, both on facts and in law, in rejecting the contention of the appellant that the order passed by the AO levying penalty is not sustainable in the eye of law as no satisfaction, as required under the law, was recorded by the AO in the assessment order."

5.

The relevant fact is that assessment order u/s 143(3) of the Act in the case of the assessee was finalized on 31st March 2007 determining the total income at ₹22,12,119/-. The total concealed income of the assessee was determined at ₹46,11,110/- after giving effect to the order of the Ld. CIT(A). The Assessing Officer has also initiated penalty proceedings on the additional income disclosed Smt. Ravinder Kaur Bhatia 4 by the assessee and vide penalty order u/s 271(1)(c) of the Act dated 28th March 2013, the Assessing Officer has imposed penalty of ₹15,00,000/-. 5.1 The assessee has filed appeal against the levying of penalty u/s 271(1)(c) of the Act before the Ld. CIT(A). The Ld. CIT(A) vide order dated 05th March 2015 dismissed the appeal of the assesse for want of non-prosecution and also holding that the assessee has taken the grounds against levy of penalty u/s 271(1)(c) of the Act, but the order and notice of demand filed was u/s 271F of the Act pertaining to penalty of ₹5,000/-.

6.

Heard both the sides and perused the material on record. We have gone through the paper book filed by the assessee during the course of appellate proceedings before us. The assessee has filed a copy of Form No. 35 dated 17th April 2013 placed at page No. 11 & 12 of the paper book. It is categorically mentioned at serial No. 5 of the Form No. 35 that assessee has filed the appeal u/s 271(1)(c) of the Act and not u/s 271F of the Act. We consider that these facts and material demonstrate that assessee has filed the impugned appeal before the Ld. CIT(A) against the order of the AO for levying penalty u/s 271(1)(c) of the Act. The Ld. CIT(A) has not taken into consideration these facts before simply dismissing the appeal of the assessee without merit of the issue raised in the appeal. 6.1 Section 250(6) of the Act contemplates that the Ld. CIT(A) would determine point in dispute and therefore record reasons on such point in support of his conclusion. The Ld. CIT(A) has failed to determine those point and record detailed findings to decide the issue on merit. Therefore, in the interest of justice, in order to adjudicate the appeal of the assessee on merit, we restore Smt. Ravinder Kaur Bhatia 5 this appeal to the file of the Ld. CIT(A) for deciding de novo on merit after affording adequate opportunity to the assessee.

7.

In the result, appeal of the assessee is allowed for statistical purposes.

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