SAIKAT CHATTERJEE,KOLKATA vs. ITO 61(1), KOLKATA

Brief facts of the case of the assessee is that the assessee filed return of income on 30.08.2019 declaring total income of Rs. 6,69,120/-. An intimation u/s 143(1) of the Act passed by the ADIT. In the intimation, the income was computed at Rs. 6,69,120/- issuing refund of Rs. 1,33,627/- on verification of intimation it is noticed that the assessee has claimed TDS credit of Rs. 7,66,000/-. CPC while processing has allowed the TDS payment of Rs. 1,74,015/-.

Aggrieved by the said order, the assessee preferred an appeal before the Ld. CIT(A) wherein the appeal of the assessee has been dismissed on the ground of delay as there was a delay of 1296 days.

The ld. Counsel for the assessee submitted that delay caused by the assessee was bonafide as it was due to the filing of final appeal by the assessee against the order u/s 139(9) before the Ld. CIT(A) on 12.02.2020. The Ld. Counsel further submits that the appeal filed by the assessee against the 139(9) was taken up for hearing for 4 years and thereafter dismissed on the sole ground that the appeal was not maintainable as the appeal was pre-dated and such appeal against 139(9) is not maintainable. The Ld. Counsel submits that the order passed u/s 139(9) of the Act dated 12.02.2020, and when it was suggested to file an appeal against the order u/s 143(1) the assessee preferred an appeal before the Ld. CIT(A), hence the delay caused was Bonafide and due to the procedural lack of knowledge that should be condoned. The ld. Counsel further submits that the assessee is an individual filed his income tax return with a total salary income at RS. 8,41,962/-. However, in the Form 26AS the total salary of income was reflected as Rs. 41,63,988/- which included an amount of Rs. 33,22,026/- representing salary earned in Belgium. The Ld. Counsel further submits the salary earned in Belgium is not taxable in India as per the provision of IT Act and also protected under the Double Taxation Avoidance Agreement (DTAA). The prayer of the Ld. Counsel of the assessee is that his case to be restored in the file of the Ld. CIT(A) for hearing by condoning the delay. He has also placed decision of Hon’ble Apex Court passed in the case of DIT(IT)

Contrary to that the Ld. D.R supports the impugned order.

Upon hearing the submission of the counsel of the respective parties, we have perused the order of Ld. CIT(A) and find that it has been dismissed on account of delay as the Ld. CIT(A) hold there was no sufficient cause has been shown with a long delay of 1296 days. We have gone through the contentions of the ld. Counsel for the assessee and find that while filing return of income the assessee declared a correct salary as his income as included the salary from Belgium. However, while processing return CPC, Bengaluru issued a defect under 139(9) on 04.02.2020 stating that there is a mismatch in the salary and as per 26AS and ITR the return shall be treated as defective. It is pertinent to mention here that against such notice u/s 139(9) the assessee filed an appeal before the Ld. CIT(A) on 12.02.2020. In the meanwhile, CPC, Bengaluru passed an order u/s 143(1) on 1.9.2020 disallowing the proportionate TDS on the ground that the assessee has not shown the entire income as reflected in the 26AS. It further appears that on 20.03.2024 i.e. after four year the appeal against 139(9) was taken up for hearing and dismissed that pre-filing the appeal does not deserve to be adjudicated and hence rejected. The Ld. Counsel has placed the above said order passed on 20.03.2024 before us. The appeal has been filed against the order u/s 143(1) before the Ld. CIT(A) on 19.04.2024 i.e. just within one month from the order passed u/s 250 of the Act dated 20.03.2024. Chronology of events filing of the appeal is depicted herein below:

The recent judgment as cited by the assessee also deals thus: