MAHESH PRAKASH BENDE,MUMBAI vs. INCOME TAX OFFICER CIRCLE 27(2), MUMBAI

1. In the facts and circumstances of the case and in law, the Learned National Faceless Appeal Centre (NFAC), CIT(A) has erred in upholding the Assessment Proceedings initiated without a valid sanction since it was initiated by taking approval of Range 27(2) under section 151 as against valid approval of PCCIT/PCIT when the assessment is reopened beyond 4 years.

2. In the facts and circumstances of the case and in law, the Learned National Faceless Appeal Centre (NFAC), CIT (Appeals) has erred in upholding the action of Ld. Assessing Officer in not providing the sanction note of the above authority thereby violating the directions laid down by the Tata Capital Financial Services Limited vs. ACIT [WP No. 546/2022; order dated 15.02.2022].

3. In the facts and circumstances of the case and in law, the Learned National Faceless Appeal Centre (NFAC), CIT(A) has erred in dismissing the appeal filed by appellant in limine on the ground of limitation - without condoning the delay in filing the appeal caused due to reasonable causes.

4. In the facts and circumstances of the case and in law, the Learned National Faceless Appeal Centre (NFAC), CIT(Appeals) has erred in upholding the action of Ld. Assessing Officer in completing the Assessment in gross violation of the principle of natural justice.

5. In the facts and circumstances of the case and in law, the Learned National Faceless Appeal Centre (NFAC), CIT(Appeals) has erred in upholding the action of Ld. Assessing Officer in adding the receipts of Rs.4,09,16,374/- to the total turnover as reported by the appellant in form 3CD without considering the fact that the turnover declared in the audit report includes the total receipts of Rs.4,09,16,374/- which resulted in Double addition of estimated profit of Rs. 38,23,291/- on the same receipts or Turnover.

6. The appellant craves leave to add, alter, delete or modify all or any of the above grounds of appeal. All the above grounds are without prejudice to each other.

Mahesh Prakash Bende 7. Before us, the learned Authorised Representative (AR) of the assessee reiterated the factual matrix of the case as emanating from the orders of the lower authorities. He further drew our attention to the reasons furnished for condonation of delay, as reproduced by the learned CIT(A) in para 3.1 at page 4 of the impugned order, and submitted that the delay in filing the appeal was neither deliberate nor intentional. It was submitted that the assessee is not well educated and has studied only up to 10th standard and is not conversant with computer operations. The learned AR further submitted that the non-compliance during the assessment proceedings as well as the delay in filing the appeal occurred due to lack of proper guidance and default on the part of the accountant. It was further contended that the assessee came to know about the demand belatedly, by which time the business of the assessee had already been closed and the earlier accountant and auditor were not traceable. The learned AR submitted that considerable time was consumed in arranging for a new professional to pursue the matter and, therefore, the delay of 127 days had occurred due to circumstances beyond the control of the assessee. It was thus contended that the assessee had demonstrated a reasonable and sufficient cause for the delay and, in the interest of substantial justice, the same deserved to be condoned. The learned AR accordingly prayed that the order of the learned CIT(A) dismissing the appeal in limine be set aside and the matter be restored for adjudication on merits.

Mahesh Prakash Bende 8. On the merits, it was contended that the turnover as reflected in the audit report in Form No. 3CD represents the correct turnover of the assessee, having been duly certified by the Chartered Accountant. The learned AR reiterated that the assessee could not comply with the notices issued under section 142(1) of the Act, as the same were not retrieved due to discontinuance of business and non-access to the registered email address. It was thus submitted that the non-compliance was neither deliberate nor intentional, and a sympathetic view may be taken in the matter. The learned AR, pointed out the prayers made before the CIT(A) - (i) that for the purpose of determining the total income, the turnover be considered either as per the audit report in Form 3CD or as reflected in Form 26AS, without resulting in duplication; (ii) that the exempt allowances and deductions as reflected in the salary certificate in Form No. 16 be allowed while computing the income under the head “Salary”; (iii) that credit of tax deducted at source, as appearing in Form 26AS, be duly granted to the assessee. On the basis of the above submissions, the learned AR prayed that the additions made by the Assessing Officer be deleted and appropriate relief be granted to the assessee.

Mahesh Prakash Bende 13. We find that the learned CIT(A) has adopted a hyper- technical approach in declining to condone the delay and dismissing the appeal in limine, thereby depriving the assessee of a statutory right of appeal. In the interest of justice, we are of the considered view that the delay deserves to be condoned and the matter requires to be restored to the file of the learned CIT(A) for adjudication on merits.