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

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “D” MUMBAI BEFORE MS. SUCHITRA RAGHUNATH KAMBLE (JUDICIAL MEMBER) AND SHRI AMARJIT SINGH (ACCOUNTANT MEMBER) ITA No. 7003/MUM/2019 Assessment Year: 2007-08 Smt. Ravinder Kaur Bhatia, Income Tax Officer, Ward 308, Tulsiani Chamber, Nariman Point, Vs. 19(3)(2), Mumbai-400021. Mumbai-400020. PAN No. AGAPB 8595 M Appellant Respondent

Assessee by : Mr. Hariom Tulsian, AR Revenue by : Ms. Neha Thakur, DR Date of Hearing : 23/12/2021 Date of pronouncement : 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).

Smt. Ravinder Kaur Bhatia 2 ITA No. 7003/M/2019 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 ITA No. 7003/M/2019 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 ITA No. 7003/M/2019 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 ITA No. 7003/M/2019 this appeal to the file of the Ld. CIT(A) for deciding de novo on merit after affording adequate opportunity to the assessee.

Order pronounced in the open Court on 10/01/2022. Sd/- Sd/- (SUCHITRA RAGHUNATH KAMBLE) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai; Dated: 10/01/2022. Rahul Sharma, Sr. P.S. Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. BY ORDER, //True Copy// (Sr. Private Secretary) ITAT, Mumbai