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Income Tax Appellate Tribunal, BENCH “A”KOLKATA
Before: Shri Manish Borad, Hon’ble & Shri Sonjoy Sarma, Hon’ble
आयकर अपील�य अ�धकरण, पीठ “A” , कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL BENCH “A”KOLKATA Before: Shri Manish Borad, Hon’ble Accountant Member & Shri Sonjoy Sarma, Hon’ble Judicial Member आयकर अपील सं.य/ Assessment Year: 2016-17 बनाम Sanjay Agarwal PCIT, Kolkata-5,Aaykar 3C Block No.17, Bhawan, 110 Shantipally, E V/s. Diamond City, North M Bypass, Kolkata-700 Jessore Road, 68 107. Jessore Road, Kolkata- 700 055. PAN: ACYPA2272Q अपीलाथ� /Appellant ��यथ� /Respondent .. अपीलाथ� क� ओर से/By Appellant Shri Vijeta Agarwal,CA,Ld.AR ��यथ� क� ओर से/By Respondent Shri Biswanath Das, Ld.DR सुनवाई क� तार�ख/Date of Hearing 22-09-2022 घोषणा क� तार�ख/ 30-11-2022 Date of Pronouncement आदेश /O R D E R PER MANISH BORAD, AM.
The captioned appeal at the instance of the assessee for the assessment years 2016-17 is directed against the order dt. 23-03-2021 passed u/s. 263 of the Income-tax Act, 1961 [ hereinafter, referred to as ‘the Act’] by the ld. Principal Commissioner of Income-tax [ in short, hereafter referred to as ‘the ‘ld. PCIT) Kolkata-5, Kolkata.
2. Registry has informed that the both the appeal filed by the assessee are time barred by 184 days. Condonation application has been filed by the assessee by way of Affidavit Dt. 31 Dec, 2021 (copy of which is placed on 1. Sanjay Agarwal record). Perusal of the same shows that the delay was on account of Covid- 19 Restriction during the period 15.03.2020 till 28.02.2022. We, therefore, in view of the judgment of The Hon 'ble Supreme Court vide Miscellaneous Application No. 21 of 2022 find that the limitation period in filing appeal between 15.03.2020 till 28.02.2022 has been excluded for calculating the limitation period. Since the period of limitation in the case of the assessee falls during this period, the same deserves to be extended and we, therefore, condone the delay of 184 days and admit the appeal for adjudication on merits.
The assessee has raised the following grounds of appeal:-
1. 1. That the order dated 23/03/2021 passed u/s 263 of the Income Tax Act, 1961 by the Hon'ble Principal Commissioner of Income Tax, Kolkata-5, is void ab initio, as no notice was served on the appellant.
That the order dated 23/03/2021 passed u/s 263 the Income Tax Act, 1961 by the Hon'ble Principal Commissioner of Income Tax, Kolkata-5 is void ab initio, as the appellant was not given an opportunity of being heard, hence it is against the principles of natural justice. Without prejudice to the above, following grounds of appeals are taken:
3. That the Hon'ble Principal Commissioner of Income Tax, Kolkata-5, erred in holding that the assessment order dt.19/11/2018 passed u/s 143(3) of the Income Tax Act 1961, by the Learned Assessing Officer, Ward-49(3), Kolkata was erroneous & prejudicial to the interest of revenue & the order has to be set aside.
4. That the Hon'ble Principal Commissioner of Income Tax, Kolkata -5, erred in assuming jurisdiction u/s 263 of the Income Tax Act 1961 on the basis of departmental audit objection on the issue, when the complete details regarding the issues in question were audited u/s 44AB of the Income Tax Act 1961, were filed and verified by the Learned Assessing Officer, 5 That the Hon'ble Principal Commissioner of Income Tax, Kolkata -5, erred in holding that the assessment was under assessed by amount of Rs. 16,98,623/- whereas the appellant has correctly paid the custom duty wherever it was applicable.
6. That the appellant be allowed to add/alter/amend/delete either any or all of the grounds of appeal either before or at the time of hearing.
2. Sanjay Agarwal
4. At the outset, the Ld. Counsel for the assessee submitted that firstly the notice u/s. 263 of the Act was not issued/served on the appellant assessee and secondly, no opportunity of being heard was granted before framing the impugned order u/s. 263 of the Act, which is against the principle of natural justice. Prayer made to restore the matter back to the ld.PCIT for fresh adjudication.
5. On the other hand, the Ld. Departmental Representative opposed to the said submission and supported the order of the ld.PCIT. 6. We have heard the rival contentions and perused the material placed on record before us. The revisionary order passed u/s. 263 of the Act has been challenged by assessee before us. We observe that the assessee is an individual and assessment u/s. 143(3) of the Act was completed on 19-11- 2018 assessing total income at Rs. 4,27,150/- after making addition at Rs. 16,98,623/-. Subsequently, the ld. PCIT called for assessment records and also noticed that there were certain audit objections. Thus, notice u/s. 263 of the Act was issued. However, notice dt. 12-03-2021, through which the case of assessee was fixed for hearing on 19-03-2021 asked the assessee to appear in person or the A/R, but none appeared on the said date. Since the revisionary proceedings u/s. 263 of the Act were getting time barred by limitation on 31-03-2021 the ld.PCIT concluded it on 23-03-2021 setting aside the assessment order dt. 19-11-2018 holding it as erroneous and prejudicial to the interest of the revenue and directed the ld. AO to frame/pass the assessment afresh after considering the observations given by the ld.PCIT in the impugned order passed u/s. 263 of the Act.