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Facts
The assessee's return for AY 2018-19 was processed under Section 143(1a) with an adjustment under Section 43B. Subsequent scrutiny assessment under Section 143(3) included additions under Section 43B for non-payment of statutory dues and Section 40a(ia) for alleged non-deduction of TDS on expenditures. The CIT(A) dismissed the assessee's appeal due to non-prosecution and failure to submit Form 16A/TDS returns.
Held
The Tribunal condoned the delay in filing the appeal. It held that since the CIT(A) dismissed the appeal for non-prosecution and not on merits, and the assessee sought an opportunity to present evidence, the matter should be remitted back to the Assessing Officer for fresh adjudication on merits after hearing the assessee.
Key Issues
Whether the CIT(A) was justified in dismissing the appeal for non-prosecution without considering the merits and whether the assessee should be given an opportunity to present evidence regarding additions under Sections 43B and 40a(ia).
Sections Cited
143(1a), 143(3), 43B, 40a(ia)
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Income Tax Appellate Tribunal, “B” BENCH: KOLKATA
Before: Shri Pradip Kumar Choubey&Shri Rakesh Mishra]
ORDER / आदेश Per Pradip Kumar Choubey, JM: This is the appeal preferred by the assessee against the order of Ld. Commissioner of Income Tax (Appeals)-NFAC, Delhi (hereinafter referred to as the Ld. CIT(A)] dated 30.09.2024 for AY 2018-19. It appears from the report of the registry that the appeal has been filed after a 2. delay of 6 days. The counsel of the assessee explained the reason for delay in filing the Assessment Year: 2018-19 Hitesh Kumar Bajpai condonation petition. The Ld. D.R did not raise any objection in condoning the delay. Keeping in view, the submission made by the A.R. and the judicial pronouncement that a case should be decided on merit not on technical issue, the delay is hereby condoned.
Brief facts of the case of the assessee is that the assessee filed return of income for AY 2018-19 which has also been revised declaring total income of Rs. 15,60,730/-. The assessee claimed an expenditure of Rs. 66,97,339/- under the head market placed in profit and loss account. The return of income is processed u/s 143(1a) in which the AO has made an adjustment of Rs. 5,76,590/- u/s 43B to the returned income and thus assessed income to Rs. 21,37,020/-. Subsequently the return was taken up for scrutiny assessment and accordingly the assessment has been completed under sub-section 3 of Section 143 of the Act vide assessment order dated 23.09.2021. The AO has made following additions: a) u/s 43B of Rs. 5,76,590/- for non-payment of statutory dues, as computed in the processing of the return by the Central Processing Centre. b) U/s 40a(ia) of Rs. 20,09,197/- which is 30% of Rs. 66,97,339/- for alleged non- deduction of tax at source, though the appellant has deducted tax at source at 1% to the tune of Rs. 66,297/-.
The AO assessed the income to Rs. 21,26,217/- on which demand of Rs. 11,79,941/- has been raised on 23.09.2021.
Aggrieved by the said assessment order , the assessee filed an appeal before the Ld. CIT(A) wherein the appeal of the assessee has been dismissed on account of non- prosecution.
Being aggrieved and dissatisfied the assessee preferred an appeal before us.
The Ld. A.R instead of arguing the merit of the case has only prayed that the assessee has been given an opportunity to place documentary evidence before the AO as the order passed by the AO confirmed by the Ld. CIT(A) only on this ground that the Assessment Year: 2018-19 Hitesh Kumar Bajpai assessee was not enclosed the copy of Form 16A nor submit TDS of income in support of his claim. The Ld. A.R further submitted that the order passed by the Ld. CIT(A) is also ex-parte order without discussing the merit of the case. The ld. AR prayed that the appeal of the assessee be remitted back to the file of AO for proper verification after affording an opportunity to the assessee to place documentary evidence before the AO.
The Ld. D.R though supports the impugned order but did not raise any objection in remitting back to the file of AO for proper verification.
Upon hearing the submission of the counsel of the respective parties, we have perused the order of AO and is that the AO has passed an assessment order by holding that the assessee has not enclosed the copy of Form 16A nor has submitted a copy of TDS return. The observation of AO is that the assessee has not proved to the satisfaction of AO that he has complied with the provision of Section 40a(ia) of the Act. We have also perused the order of Ld. CIT(A) and find that the Ld. CIT(A) has dismissed the appeal of the assessee by holding that the assessee is not interested in prosecuting the same. Keeping in view, the order passed by the AO confirmed by the Ld. CIT(A) and considering the submission made by the Ld. A.R and for the interest of justice , we are remitting back the appeal of the assessee to the file of AO for fresh adjudication on merit after hearing the assessee.
In the result, the appeal filed by the assessee is allowed for statistical purposes. Order is pronounced in the open court on 15th May, 2025 Sd/- Sd/- (Rakesh Mishra / राकेश �म�) (Pradip Kumar Choubey /�द�प कुमार चौबे) Accountant Member/लेखा सद�य Judicial Member/�या�यक सद�य Dated: 15th May, 2025 SM, Sr. PS Assessment Year: 2018-19 Hitesh Kumar Bajpai Copy of the order forwarded to: 1. Appellant- Hitesh Kumar Bajpai, F/2, 8A, Baroda Thakur Lane, Burrabazar- 700007 2. Respondent – ITO, Ward-43(1), Kolkata 3. Ld. CIT(A)-NFAC, Kolkata 4. Ld. Pr. CIT- , Kolkata 5. DR, Kolkata Benches, Kolkata (sent through e-mail)