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Income Tax Appellate Tribunal, “A” BENCH, KOLKATA
Before: Shri A. T. Varkey, JM & Shri Rajesh Kumar, AM]
ORDER
Per Shri A.T.Varkey, JM
This is an appeal preferred by the assessee against the order of Assessing Officer (AO) passed u/s. 144 read with section 263 of the Income-tax Act, 1961 (hereinafter referred to as the “Act”) dated 06.12.2019 for AY 2012-13.
2. At the outset, it has been brought to our notice that the appeal is time barred by 147 days. Further, it has been brought to our notice that a revised Form No. 36 has been filed by the assessee wherein it has challenged the order passed by the Ld. Pr. CIT-4, Kolkata dated 12.03.2019 pursuant to which the AO has passed the impugned order dated 06.12.2019. The Ld. CIT, DR objected to the assessee’s filing the appeal directly to the Tribunal against the AO’s action giving effect to the 263 order passed by the Ld. Pr. CIT- 4, Kolkata dated 12.03.2019. According to him, the assessee should have preferred an appeal before the Ld. CIT(A) rather than coming before this Tribunal. Therefore, according to Ld. CIT DR, the appeal of the assessee is invalid and the Tribunal does not have the jurisdiction to hear the appeal of the assessee even though revised Form No 36 has been filed by the assessee. Per contra, the Ld. AR of the assessee submitted that a similar issue cropped up before this Tribunal in the case of M/s. Goodpont Stockist Pvt. Ltd. Vs. PCIT-4, Kolkata in for AY 2012-13 wherein by order dated
M/s. Ranisati Hosiery Pvt. Ltd., AY: 2012-13 12.08.2021 similar defect was noticed by the Tribunal wherein that case also the same Ld. AR appeared and the Tribunal was pleased to hold as under:
“The present appeal has been preferred by the assessee against the order dated 11.03.2019 of the Principal Commissioner of Income Tax (Appeals)-4, Kolkata (hereinafter referred to as ‘PCIT’).
As pointed out by the Registry, the appeal is time-barred by 147 days. Further, the ld. DR has brought our attention to Form No.36 i.e. original form of appeal and submitted that the assessee originally had filed appeal against the ITO, Ward-11(4), Kolkata and further that the assessee originally assailed the assessment order dated 30.12.2019 passed u/s 144 r.w.s 263 of the Income Tax Act (hereinafter the “Act”). However, the assessee subsequently filed revised form of appeal whereby the name of the respondent has been changed as PCIT-4, Kolkata.
3. The ld. AR, in this respect, has submitted that in fact the assessee did not receive the order dated 11.03.2019 passed by the ld. PCIT u/s 263 of the Act. That the assessee came to know about the order passed u/s 263 only on the receipt of assessment order passed u/s 143(3) r.w.s. 263 of the Act pursuant to the directions given by the ld. PCIT vide revision order dated 11.03.2019. He has further submitted that due to an inadvertent mistake, the assessee arrayed ITO, Ward-11(4) as a Respondent whereas the assessee, in fact, wanted to assail the order of the PCIT dated 11.03.2019. Therefore, the appeal Form No.36 was revised to implead the PCIT as respondent.
4. However, the ld. DR pointed out that the assessee even revised Form No.36 through grounds of appeal
has only assailed the assessment order dated 30.12.2019. He has further submitted that the assessee by way of revised appeal form cannot change the nature of the appeal in toto by not only substituting the name of the parties but also grounds of appeal.
5. The ld. AR, at this stage, has submitted that the above discrepancy/error has occurred due to inadvertent mistake and that the assessee may be allowed to withdraw the present appeal with liberty to file afresh and that the time consumed in prosecuting the present appeal may not be taken into consideration for limitation purposes. The ld. DR has not objected the same.
6. In view of this, the appeal of the assessee is dismissed as withdrawn with liberty to file afresh against the appropriate party. The time consumed in prosecuting the present appeal i.e. from the date of filing of the present appeal till receiving of the copy of this order will not be taken into consideration for the purpose of limitation period. However, the assessee will be liable to explain about the delay period, if any, in filing the appeal minus time period consumed in prosecuting the present appeal as observed above.
7. In the result, the appeal of the assessee is dismissed as withdrawn.” In the light of the above, the Ld. AR, therefore, prays that the instant appeal may be allowed to be withdrawn with liberty to file appeal against the action of the Ld. Pr. CIT-4, Kolkata dated 12.03.2019.
We have heard rival submissions and gone through the facts and circumstances of the case. We note that the Ld. AR of the assessee was the same i.e. Shri Bisweswar Ghosh who appeared on behalf of the appellant in the case of M/s. Goodpoint Stockist Pvt. Ltd.
M/s. Ranisati Hosiery Pvt. Ltd., AY: 2012-13 (supra) and the facts of the present case are similar/identical in nature as that of M/s. Goodpoint Stockist Pvt. Ltd. (supra) where the Tribunal was pleased to allow the assessee to withdraw the appeal and had given liberty to file fresh appeal against the action of the Ld. PCIT-4, Kolkata. The Tribunal was also pleased to condone the time consumed in prosecuting the appeal i.e. from the date of filing of the present appeal till receiving the copy of the Tribunal order and the period not to be taken into consideration for the purpose of calculating the limitation period. With the aforesaid same observation we allow the assessee to withdraw the appeal.
In the result, the appeal of the assessee is allowed.
Order is pronounced in the open court on 5th January, 2022. Sd/- Sd/- (Rajesh Kumar) (Aby. T. Varkey) Accountant Member Judicial Member Dated: 05.01.2022 JD(Sr.P.S.)
Copy of the order forwarded to: 1. Assessee – M/s. Ranisati Hosiery Pvt. Ltd., Military Quarter, Bah, Howrah-711227