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Income Tax Appellate Tribunal, AHMEDABAD “A” BENCH
Before: Shri Waseem Ahmed & Shri Siddhartha Nautiyal
आदेश/ORDER PER : SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER:-
This is an appeal filed by the assessee against the order of the ld. Commissioner of Income Tax (Appeals)-5, Ahmedabad in Appeal no. CIT(A)-5/ITO. Wd. 5(2)(3)/10020/2018-19, in proceeding u/s. 271(1)(c) vide order dated 15/07/2019 passed for the assessment year 2013-14.
Page No. 2 Smt. Pritiben Bharatbai Shah vs. ITO
The assessee has raised the following grounds of appeal:-
Grounds of Appeal Tax effect relating each Ground of appeal (see note below)
1. On the facts and circumstances of the case as well 2,49,261/- as law on the subject, the learned Commissioner of Income-Tax (Appeals) has erred in confirming penalty levied by assessing officer u/s. 271(1)(c) of the Act.
2. It is therefore prayed that the above N.A. addition/disallowance made by the assessing officer may please be deleted.
3. Appellant craves leave to add, alter or delete any N.A. ground(s) either before or in the course of hearing of the appeal.
Total tax effect 2,49,261/-
Before coming to the merits of the case, we observe that the appeal is time-barred by 514 days. The assessee filed an affidavit stating that the reason for delay in filing appeal was that at the time the order was received at the residence of the assessee on 12-08-2019, she was in Australia and reached India on 25-10-2019. Thereafter, there was spread of Covid-19 and hence for the above reasons, the assessee inadvertently missed the receipt of notice. Subsequently, as soon as the assessee found the impugned order Page No. 3 Smt. Pritiben Bharatbai Shah vs. ITO under consideration, she forwarded the same to her tax consultant for taking necessary action. Accordingly, the counsel for the assessee submitted that in the instant facts, there was no deliberate intention for the delay in filing appeal against the penalty order and hence he prayed that the same may kindly be condoned. Looking to the instant facts, we observe that during the period under consideration when the notice was sent at the registered address of the assessee, she was stationed at Australia. Further, subsequently there was also spread of Covid-19 virus leading to nationwide lockdown. Therefore, looking into the facts and circumstances of the instant case, we are hereby condoning the delay in filing appeal, in the interests of justice. The learned DR has also not objected to the delay in filing of appeal being condoned, looking to the instant facts. Accordingly, the delay in filing the instant appeal is condoned.
Now on the merits of the case, this is an appeal by the assessee against the order of penalty u/s 271(1)(c) of the Act, which has been confirmed by the Ld. CIT(Appeals). The counsel for the assessee submitted that in the instant facts, the quantum appeal has been set aside to the file of AO for necessary verification by ITAT in the assessee’s case for the same assessment year i.e. 2013-14 in ITA number 2445/Ahd/2016 vide order dated 31-07-2019. The relevant extracts of the ITAT ruling are reproduced below for reference:
“6. In the light of above facts and detailed findings of the Ld. CIT(A) we observe that the assessee has failed to substantiate with relevant evidence her claim of running many lending business (Sarafi Business) and claim of deduction of Rs. 9,78,182/- incurred towards business expenditure. Regarding the alternative claim that disallowed amount ought to have been allowed as a business loss Page No. 4 Smt. Pritiben Bharatbai Shah vs. ITO under Sec. 28 of the Act. We have gone through the assessment record and appellate order of the Ld. CIT(A) and observed that claim of expenses of Rs. 9,78,102/- pertaining to any other business loss under Sec. 28 of the Act has not been verified and examined at the time of assessment proceedings. However, we have noticed in the Paper Book the assessee has pleaded copies of ITR acknowledgement of A.Y. 1995-96 to 2001-02 pertaining to earning of business income in the earlier years. We find that the AO has not given any specific finding on the issue of any amount of carry forward losses claim by the assessee. In the light of the above facts we are of the considered opinion that it will be appropriate to restore this issue to the file of the AO for decide afresh after examination and verification of document and information to be furnished by the assessee during the course of set aside proceedings. Accordingly, this issue of alternative claim u/s. 28 of the Act is restored to the file of the AO as directed above. Therefore, appeal of the assessee is partly allowed.”
4.1 Since, in the instant facts, the matter in relation to the quantum proceedings has been set aside to the file of AO for deciding the matter afresh after examination and verification of documents and information to be furnished by the assessee during the course of set-aside proceedings, accordingly, the instant penalty matter is also being set aside to the file of AO for fresh adjudication.
In the result, the appeal of the assessee is allowed for statistical purposes.