ARUP KUMAR BHOWMICK,KOLKATA vs. I.T.O., WARD - 1(1), BURDWAN, BURDWAN
Income Tax Appellate Tribunal, KOLKATA ‘C’ BENCH, KOLKATA
Before: SRI SANJAY GARG & SRI RAKESH MISHRA
PER RAKESH MISHRA, ACCOUNTANT MEMBER:
This appeal filed by the assessee is against the order of the Ld.
Commissioner of Income Tax (Appeals)-NFAC, Delhi [hereinafter referred to as “the Ld. CIT(A)”] passed u/s 250 of the Income Tax Act,
1961 (hereinafter referred to as “the Act”) for AY 2010-11 dated
31.10.2023, which has been passed against the assessment order u/s 143(3)/254 of the Act, dated 28.12.2019. 2. The registry has noted that the appeal is barred by limitation of time by 195 days. The assessee has filed an application seeking condonation of delay of 188 days only which is as under:
I.T.A. No.: 1513/KOL/2024
Assessment Year: 2010-11
Arup Kumar Bhowmick.
Page 2 of 6
“1. That your appellant received the appellate order on dt. 22/11/23 and the last date of filing of instant appeal was 21/01/24 but it is being filed on the first week end of July, 2024. So there has been delay of 188 days approx.
2. That the instant delay is intricately being related to the identical cause as being delineated in the ground no (2) of appeal petition before the Hon’ble
ITAT Bench. It is due to shifting of appellant residential and business base from the registered address in the department database to the another city in far away due to the sudden collapse of appellant original business and financial fortune for the quest of livelihood with his entire family till the last month. As a result there had been no one in the registered address to communicate with the appellant consultant in whose emails notices were sent to the appellant and all connection between the appellant and his consultant was cut off due to the financial misfortune of the appellant and the uncertainty of appellant whereabouts who was running to different places for the sake of new line of business and was mentally highly disturbed. Appellant original business in the registered city was closed forever since 2013. Moreover appellant never received any mobile messages from the NFAC for which he was entitled. So there has been reasonable and honest cause for said delay. So appellant fervently pray before the Hon’ble
Bench to condone the said delay on basis of Hon’ble Apex court settled guidelines not to throw the meritorious matter out of threshold for delay and when mere technicality is pitted against the substantial justice, then the cause of substantial justice be preferred and advanced. So kindly condone the delay in the interest of justice. Affidavit will be filed at the time of hearing before the Hon’ble Bench.”
2.1. An affidavit in this regard has also been filed in which on the issue regarding the appeal being time barred by 195 days as per the Registry, it is submitted that the appellate order was passed on dt. 31.10.2023
and it was first noticed and downloaded from the e-filing portal showing served on dt. 22.11.2023 in the portal by the appellant’s new consultant in May, 2024. So the Registry is correct on calculating the delay of 195
days which is mentioned in the condonation petition as 188 days approx. due to the inadvertent typographical mistake and it is prayed to condone the said inadvertent mistake in the interest of justice.
I.T.A. No.: 1513/KOL/2024
Assessment Year: 2010-11
Arup Kumar Bhowmick.
Page 3 of 6
2. Since there was sufficient cause for the delay in filing the appeal, the delay is hereby condoned and the appeal is admitted for adjudication. 3. The assessee is in appeal before the Tribunal raising the following grounds of appeal: “1. that passing off ex parte appellate order and dismissal of appeal by the CIT(A), NFAC, Delhi is bad in law and unjust. 2. For that both the AO and NFAC failed to appreciate the fact that appellant had suddenly shifted his residence from his registered address in the department database due to the sudden financial collapse of his original business and financial fortune and in quest of livelihood he shifted his entire family to a rented premise of other city of W.B. and closed his original business since the 2013 and there was no one in his registered address to receive the notice. Moreover the mail address belonged to his consultant with whom he had no contact for substantial period due to his shifting of base and appellant just returned to his native city in the last month. Moreover appellant did not receive any mobile messages from the NFAC. So there has been reasonable and honest cause for said non compliance. 3. For that appellant aforesaid contention is self proven from the recording of fact by the A.O. that the in first assessment proceeding as well as in first appellate proceeding appellant fully cooperated not only by furnishing all the documental submissions but also producing all the person being summoned by the A.O. u/s 131 for deposition as well as attending before the CIT(A) and Hon'ble ITAT. So appellant instant default is inadvertent and for bonafide reason. 4. For that appellant pray before the Hon'ble Bench of ITAT to restore the file back to the A.O. for the end of justice any adverse order will afflict the appellant with greatest financial hardship. 5. Appellant has all the relevant documents which were accordingly produced before the A.O, CIT(A) and Hon'ble ITAT in the first round of proceeding which demonstrates the clear sincerity and honesty of appellant. 6. For that appellant may modify the grounds.” 4. Brief facts of the case of the assessee are that the assessee is an individual who is engaged in the business of trading of agricultural instruments, tractor & spare parts. The return of income for the AY I.T.A. No.: 1513/KOL/2024 Assessment Year: 2010-11 Arup Kumar Bhowmick. Page 4 of 6
2010-11 was filed by the assessee on 28.09.2011 disclosing total income of Rs.10,05,959/-. The return was selected for scrutiny and an order u/s 143(3) of the Act dated 21.03.2013 was passed by the Assessing Officer (hereinafter referred to as ‘the ld. AO’) assessing the income at Rs.3,66,55,960/-. The Ld. AO added back the liability claimed by the assessee amounting to Rs. 3,41,05,000/-. The Ld. AO also added an amount of Rs. 15,45,004/- on account of deemed dividend u/s. 2(22)(e) of the Act. The assessee preferred an appeal before the Ld. CIT(A), Asansol, who confirmed the addition of Rs.
3,41,05,000/- which was claimed as a liability by the assessee and remanded back the second ground of addition of Rs.15,45,004/- to the Ld. AO to verify the shareholding pattern of the assessee. The assessee preferred an appeal before the Hon’ble ITAT Kolkata. The Hon’ble ITAT,
Kolkata allowed the appeal of the assessee for statistical purposes, giving direction to the Ld. AO to grant an opportunity of cross- examination of the parties to the assessee. The Ld. AO issued summons u/s. 131 of the Act to all the thirty-five parties including the assessee, but neither the assessee nor any party appeared before the Ld. AO. As no compliance was made, the assessment was completed at Rs.3,66,55,960/- on 28.12.2009 without giving any relief to the assessee.
4.1. Aggrieved with the assessment order, the assessee preferred an appeal before the Ld. CIT(A), who vide order dated 31.10.2023
dismissed the appeal on account of non-prosecution as none of the eight notices of hearing were complied with. Aggrieved with the order of the Ld. CIT(A), the assessee has filed the appeal before the Tribunal.
5. Rival contentions were heard and the record and the submissions made have been examined. The order of the Ld. CIT(A) is ex-parte and I.T.A. No.: 1513/KOL/2024
Assessment Year: 2010-11
Arup Kumar Bhowmick.
Page 5 of 6
in the absence of the appearance of the parties, the direction of the Hon’ble Tribunal could not be complied with. In the grounds of appeal
, the assessee has mentioned the reason for non-compliance due to non- receipt of the notice which occurred on account of change in residence.
Therefore, we deem it appropriate in the interest of justice that the assessee should be granted another opportunity for making his submission and availing the opportunity directed by the Hon’ble
Tribunal. During the course of the appeal the assessee requested that the matter may be set aside to the Ld. AO. Hence, the orders of the Ld.
CIT(A) as well as the Ld. AO are hereby set aside and the matter is remanded back to the Ld. AO who shall allow an opportunity of being heard to the assessee so that the compliance to the directions of the Hon’ble Tribunal could be made. The assessee shall not seek unnecessary adjournment and shall file necessary evidence in support of its claim before the Ld. AO. Hence, Ground no. 4 of the appeal is allowed and ground nos. 1, 2, 3, 5, 6 are either general in nature or are of academic interest only being more in the nature of submission and are, therefore, not being adjudicated upon.
6. In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open Court on 16th January, 2025. [Sanjay Garg]
[Rakesh Mishra]
Judicial Member
Accountant Member
Dated: 16.01.2025
Bidhan (P.S.)
I.T.A. No.: 1513/KOL/2024
Assessment Year: 2010-11
Arup Kumar Bhowmick.
Page 6 of 6
Copy of the order forwarded to:
Arup Kumar Bhowmick, Puratan Chak, Nutanganj, Burdwan, West Bengal, 713102. 2. I.T.O., Ward-1(1), Burdwan. 3. CIT(A)-NFAC, Delhi. 4. CIT- 5. CIT(DR), Kolkata Benches, Kolkata. 6. Guard File. //// By order