BHARAT SHETTY,LUCKNOW vs. ITO-2(1), LUCKNOW-NEW
Income Tax Appellate Tribunal, LUCKNOW BENCH ‘B’, LUCKNOW
Before: SHRI KUL BHARAT & SHRI ANADEE NATH MISSHRA
PER ANADEE NATH MISSHRA:A.M.
(A)
This appeal vide I.T.A. No.639/Lkw/2024 has been filed by the assessee for assessment year 2018-19 against impugned appellate order dated 30/08/2024 passed by learned Commissioner of Income Tax
(Appeals) [“CIT(A)” for short]. In this appeal the assessee has raised the following grounds:
“1. Because the learned CIT(A), NFAC erred in law and on facts in inferring that the appeal filed by the assessee is time barred and is not maintainable void abinitio.
Because the learned CIT(A), NFAC ought to have granted sufficient opportunity to the assessee to submit reasons/ explanation based on which the appeal was filed by the assessee beyond the time limit of 30 days as prescribed in section 249 of the Income Tax Act, 1961. Appellant by Shri Sandeep Kumar, C.A. Respondent by Shri Manu Chaurasia, CIT (D.R.)
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Because the assessee having requested for personal hearing for making oral submissions, the learned CIT(A), NFAC ought not to have disposed the appeal without granting personal hearing requested by the assessee.
Because the learned CIT(A), NFAC ought to have considered the written submissions filed by the assessee on the merits of the issues involved in the appeal and ought to have decided the appeal on the merits of the issues involved in the appeal.
Because the learned CIT(A), NFAC ought to have deleted the addition of Rs. 63,84,964/- made by the learned assessing officer to the total income returned by the assessee.
Because the learned CIT(A), NFAC ought to have considered the submissions of the assessee that since the immovable property is stock in trade and not capital assets of the assessee, hence, the provisions of section 56(x) of the Income Tax Act, 1961 are not applicable to the assessee.
Because the learned CIT(A), NFAC has passed the appellate order on the basis of conjectures and surmises and without considering the facts, the applicable law and without application of mind.
Because the order appealed against is contrary to the fact, law and principles of natural justice.”
(A.1) Assessment order dated 19/04/2021 was passed by the Assessing
Officer (DIN No.ITBA/AST/S/143(3)/2020-21/1032510761(1) under section 143(3) read with section 144B of the I. T. Act whereby the assessee’s total income was assessed at Rs.1,13,35,754/- as against returned income of Rs.49,50,790/-. In the aforesaid assessment order, an addition of Rs.63,84,964/- was made by the Assessing Officer u/s 56(2)(x) of the I. T.
Act. The assessee’s appeal against the aforesaid assessment order was dismissed by the learned CIT(A) vide impugned appellate order dated
30/08/2024 on grounds of limitation. The learned CIT(A) did not condone the delay in filing of the appeal. The present appeal before us has been filed by the assessee against the aforesaid impugned appellate order dated
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30/08/2024 of the learned CIT(A). At the time of hearing the learned A.R.
submitted that the delay in filing of the appeal was because of outbreak of COVID-19 pandemic. He drew our attention to the order of Hon'ble
Supreme Court dated 23rd September, 2021 in Miscellaneous Application No.
665 of 2021 in SMW(C) No. 3 of 2020; in RE: Cognizance for extension of limitation; reproduced here for the ease of reference; whereby period from 15/03/2020 till 02/10/2021 has been excluded in computing the period of limitation.
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(B)
At the time of hearing, learned Authorised Representative for the assessee submitted that in the impugned appellate order dated 30/08/2024, passed by learned CIT(A), the aforesaid order dated 21/09/2021 of Hon'ble
Supreme Court was not considered. He further submitted that had the learned CIT(A) considered the aforesaid order of Hon'ble Supreme Court, the appeal filed by the assessee in the office of the learned CIT(A) would have been found to have been filed within limitation period. He requested that the learned CIT(A) be directed to reconsider the matter, to admit the appeal, and to decide the appeal on merits. The learned Departmental
Representative for Revenue expressed no objection to this.
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(C)
In view of the foregoing, we set aside the impugned order dated
30/08/2024 of learned CIT(A) with the direction to decide the limitation issue afresh, after giving respectful consideration to aforesaid order dated
21/09/2021 of Hon'ble Supreme Court. If the assessee’s appeal is admitted by learned CIT(A) in view of our aforesaid direction, then learned CIT(A) is further directed to decide the assessee’s appeal on merits after giving reasonable opportunity to the assessee.
(D)
In the result, the appeal is partly allowed for statistical purposes.
(Order pronounced in the open court on 15/01/2025) . .
(KUL BHARAT) (ANADEE NATH MISSHRA)
Vice President Accountant Member
Dated:15/01/2025
*Singh
Copy of the order forwarded to :
The Appellant 2. The Respondent 3. Concerned CIT 4. The CIT(A) 5. D.R. ITAT, Lucknow
Asstt.