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Facts
The assessee's appeals were against the orders of the CIT(A) which dismissed the appeals as infructuous, erroneously treating applications filed under VSVS. The delay in filing the present appeal was due to operational problems and communication issues regarding the CIT(A) order.
Held
The Tribunal condoned the delay in filing the appeal, noting the genuine reasons provided by the assessee. It was held that the CIT(A) erred in dismissing the appeal as infructuous based on a mistaken belief about the VSVS scheme application.
Key Issues
Whether the CIT(A) was justified in dismissing the appeal as infructuous due to a misunderstanding of the assessee's application under the VSVS scheme and whether the delay in filing the appeal should be condoned.
Sections Cited
147, 148, 69, 144, 250
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “D” BENCH: KOLKATA
Before: Shri Rajesh Kumar&Shri Pradip Kumar Choubey]
ORDER / आदेश Per Pradip Kumar Choubey, JM:
These are the appeals preferred by the assessee against the separate orders of Commissioner of Income Tax (Appeals)- NFAC, Delhi (hereinafter referred to as the Ld. CIT(A)] dated 20.05.2022 & 27.03.2024 for AY 2012-13 & 2014-15 respectively.
AY 2012-13 as a lead case.
It appears from the report of the registry that the appeal has been filed after a delay of 7 days for this the assessee has filed condonation petition., which are as follows- “1.a) Appellant company filed its original return of income on 26.09.2012 disclosing total income Rs. 34,24,893/-. The return was selected for scrutiny and assessment was completed at a total income of Rs. 3,39,30,550/-. b) Appellant settled this disputed addition in original assessment and penalty imposed thereunder by filing application under VSVS on 18.03.2021. c) Said application under VSVS was accepted and Form No. 5 was issued by Ld. PCIT-5, Kolkata on 03.03.2022. 2. a) Assessment of the appellant was reopened on the basis of information about investment in landed property and notice u/s 148 was issued. b) Assessment was completed u/s 147/144 on 02/12.2019 by making addition of Rs. 3,85,00,000/- as unexplained investment u/s 69 of the Act. c) Appellant filed appeal before Ld. CIT(A) on 31.01.2020 against the above addition. d) Ld. CIT(A)-NFAC has disposed off this appeal on 20.05.2022 as infructuous erroneously treating the application filed on 18.03.2021 under VSVS as if filled for disputed additions being subject matter of this appeal.
3. This way the disposal of this appeal as infructuous was wrong on the part of the Ld. CIT(A), NFAC vide order u/s 250 dated 20.05.2022.
Appeal order dated 20.05.2022 was not received in the registered e-mail of the appellant. 5.On pressure for payment of the arrear demand from the assessing officer, appellant stated about pendency of appeal. On that occasion it came to knowledge that the appeal is disposed off as infructuous. 6.However, on looking to the online portal, after log-in, it transpired that appeal was disposed off an infructuous on 20.05.2022.
Since the order u/s 250 dated 20.05.2022 was not received by appellant in its regular e-mail appellant has no knowledge about the disposal of the appeal as per above order. It came to notice very recently on 16.11.2024 and appellant has taken step to file the appeal immediately and have paid the ITAT appeal fees on 16.11.2024 itself.
The date of receipt of order/ coming into knowledge is 16.11.2024. Appellant paid the ITAT appeal fees immediately on 16.11.2024. The due date to file the appeal was 15.01.2025.
& 177/Kol/2025 Assessment Years: 2012-13 & 2014-15 Ullahas Nandini Udyog Pvt. Ltd.
The appellant is involved in construction related activities and operating from Burdwan. Due to same business operational problem, director of company could not move to Kolkata for signing and verification of appeal papers. This caused delay of 7 days in submitting the appeal. We pray your Honor to kindly condone the delay of 7 days and admit the appeal for hearing and oblige.” On perusal of the condonation petition, the reason for delay in filing the appeal seems to be genuine and bonafide. The Ld. D.R did not raise any objection in condoning the delay. Keeping in view, the condonation petition as well as judicial pronouncement that the case should be decided on merit not on technical issue, the delay is hereby condoned.
The Ld. Counsel appeared on behalf of the assessee has without entering into the merit of the case only submitted that the order passed by the Ld. CIT(A) is erroneous by saying that the assessee opted for VSVS ignoring the reality that VSVS was preferred against the assessment order u/s 144 of the Act dated 29.03.2015 and the appeal was instituted on 15.05.2015 for AY 2012-13. The present appeal was instituted on 31.01.2020 against assessment order u/s 144/147/144 of the Act dated 02.12.2019 for AY 2012-13 and the assessee did not opt VSVS against the said order. He has filed a petition with this effect.
4. The Ld. D.R did not raise any objection in sending back to the file of the Ld. CIT(A) for fresh adjudication.
We have perused the petition filed by the assessee which is as under:
i) The above appeal has been preferred against the order Ld. CIT(A) dated 20.05.2022 wherein the appeal was dismissed on the grounds that the assessee has opted for VSVS scheme, 2020. ii) It is submitted that the appellant dismissed by the Ld. CIT(A) was instituted on 31.01.2020 against the assessment order u/s 144/147/144 of the Act dated 02.12.2019 for AY 2012-13. iii) the Vivad Se Viswas preferred was against the assessment order u/s 144 of the Act dated 29.03.2015 and the appeal was instituted on 15.05.2015 for AY 2012-13.” It is important to mention here that appeal of the assessee before the CIT(A) has been dismissed taking the ground that the assessee opted VSVS which the assessee has denied by filing the petition. Keeping in view the above facts the appeal of the assessee is restored back to the file of Ld. CIT(A) for fresh adjudication after hearing the assessee.
Order is pronounced in the open court on 16th April, 2025
Sd/- Sd/- (Rajesh Kumar/राजेश कुमार) (Pradip Kumar Choubey /�द�प कुमार चौबे) Accountant Member/लेखा सद�य Judicial Member/�या�यक सद�य Dated: 16th April, 2025 SM, Sr. PS Copy of the order forwarded to: 1. Appellant- Ullahas Nandini Udyog Pvt. Ltd., Lake Land Country Club, Duplex 10C, P. S. Domjur, Munshidanga, Bally, Jagachha, Howrah-711403 (WB) 2. Respondent – DCIT, Circle-13(1), Kolkata 3. Ld. CIT(A)- NFAC, Delhi 4. Ld. PCIT- , Kolkata 5. DR, Kolkata Benches, Kolkata (sent through e-mail)