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Facts
The assessee filed an appeal against the CIT(A)'s order for AY 2014-15, which was delayed by 391 days. The CIT(A) had dismissed the assessee's appeal, stating that the original assessment order itself was 'non-est' as declared by an earlier ITAT order, and consequently, dismissed the appeal for "statistical purposes."
Held
The Tribunal condoned the 391-day delay in filing the appeal, finding the assessee was prevented from filing it on time. It ruled that the CIT(A) was incorrect in dismissing the assessee's appeal for "statistical purposes," as the assessment order being 'non-est' meant the appeal should have been allowed. The Tribunal set aside the CIT(A)'s order and allowed the assessee's grounds.
Key Issues
1. Condonation of delay in filing the appeal before the ITAT. 2. Validity of the CIT(A)'s dismissal of an appeal for "statistical purposes" when the underlying assessment order was already declared 'non-est' by the ITAT.
Sections Cited
154, 263, 144C
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Income Tax Appellate Tribunal, ‘SMC’ BENCH, KOLKATA
Before: Shri Duvvuru RL Reddy, Vice-(KZ)
Assessment Year: 2014-2015 Manorama Devi Jaiswal,……………..………Appellant 4, Amartolla street, Bagri Market, Kolkata-700001 [PAN:ACHPJ3514H] -Vs.- Income Tax Officer,……………………….…..Respondent Ward-35(4), Kolkata, Aayakar Bhawan, 110, Shanti Pally, E.M. Byepass, Kolkata-700107 Appearances by: Shri Anil Kochar, Advocate, appeared on behalf of the assessee Shri Susanta Saha, Addl. CIT, Sr. D.R., appeared on behalf of the Revenue Date of concluding the hearing: June 25, 2025 Date of pronouncing the order: July 28, 2025 O R D E R
The present appeal is directed at the instance of assessee against the order of ld. Commissioner of Income Tax (Appeals), Kolkata-22 dated 20th December 2023 passed for Assessment Year 2014-15.
(A.Y. 2014-2015) Manorama Devi Jaiswal 2. The appeal is time barred by 391 days in filing the appeal by the assessee. However, the assessee filed a declaration before the Notary Public, Kolkata dated 26th March, 2025 saying that after passing the order dated 20.12.2023 of ld. CIT(Appeals), just after a week i.e. on 27.12.2023 asessee submitted a petition u/s 154 before the ld. CIT(Appeals) to rectify the order giving all relevant facts. But ld. CIT(Appeals) has not passed any order under section 154 of the Act as requested. Due to that, there was an inordinate delay of about a year in submitting the appeal before the ITAT. The assessee was not aware of any notices of hearing and the order passed by the ld. CIT(Appeals). When the assessee came to know about the order passed by the ld. CIT(Appeals), the assessee approached the ld. A.R. to prefer an appeal, due to that there was a delay of 391 days in filing the appeal before the Tribunal. Therefore, he pleaded to condone the delay.
Considering the facts and circumstances of the case, I am of the view that the assessee was prevented in filing the appeal within the stipulated time. Therefore, I am inclined to condone the delay of 391 days. Hence the delay is condoned.
The contention of the ld. Counsel for the assessee is that the ld. CIT(Appeals) dismissed the appeal of the assessee mentioning that the assessment order itself is non-est as declared by the Hon’ble ITAT, Kolkata dated 17.11.2021, and he could not have exercised his revisionary jurisdiction in respect of a null and void assessment order. Ld. counsel further submitted that the assessee was not aware of the date of hearing before the ld. CIT(Appeals).
On the other hand, ld. Departmental Representative submitted that the ld. CIT(Appeals) has no other option except dismissing the appeal as the assessment order itself becomes nullity in the eyes of law and non-est and the foundation itself for assumption of revisionary jurisdiction u/s 263 does not exist and thus maintaining the rule of consistency, he pleaded to uphold the order passed by the ld. CIT(Appeals).
I have heard both the sides and perused the material available on record. The ld. Counsel for the assessee brought to my notice that the Hon’ble Coordinate Bench of ITAT declared the assessment order as non-est and also the ITAT has categorically gave its finding that the revisional jurisdiction, which was exercised by the ld. Pr. Commissioner under section 263 of the Income Tax Act, does not exist and the order is null and void. Ld. Counsel also brought to my notice that the assesese filed an appeal against the assessment order before the ld. CIT(Appeals) on challenging the additions made by the ld. Assessing Officer, but the ld. CIT(Appeals) has not considered the order passed by the ITAT against the proceedings of ld. Pr. CIT initiated under section 263 of the Act saying that the assessment order itself becomes nullity in the eyes of law since the mandatory provision of law as stipulated under section 144C of the Act was not complied with and, therefore, the assessment order, which was passed by the ld. Assessing Officer is null and void. Therefore, the ld. CIT(Appeals)
(A.Y. 2014-2015) Manorama Devi Jaiswal has wrongly passed the order saying that “it can be clearly seen that Hon’ble ITAT, ‘B’ Bench, Kolkata has declared the assessment order as non-est. Hence, in respect of a null and void assessment order, the appeal filed against the Assessing Officer’s order is dismissed for statistical purposes”
On perusal of the order passed by the ITAT, it is an admitted fact that the ITAT has declared the assessment order as null and void. Therefore, the ld. CIT(Appeals) has considered this fact by mentioning in his order but instead of allowing the assessee’s appeal, he dismissed the appeal for statistical purposes, which is not permissible in the eyes of law. Therefore, I am of the considered view that the order passed by the ld. CIT(Appeals) is not in accordance with law. Hence, the order passed by the ld. CIT(Appeals) is hereby set aside and the grounds raised by the assessee are allowed.
In the result, the appeal filed by the assessee is allowed. Order pronounced in the open Court on 28/07/2025.