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Income Tax Appellate Tribunal, “SMC” BENCH, AHMEDABAD
Before: SMT. ANNAPURNA GUPTA, ACCOUNTANT MEMEBR & SHRI MAHAVIR PRASAD, JUDICIAL MEMEBR
PER MAHAVIR PRASAD, JM:
The appeal has been preferred by the assessee against the order of the Commissioner of Income Tax (Appeals)-5, Ahmedabad (‘CIT(A)’ in short) vide Appeal No. CIT(A)-5/ACIT (CPC) Bang./666/16-17 dated
ITA No. 534/Ahd/2019 [Bhagwandas Kantilal Desai Vs. ACIT] A.Y. 2009-10 - 2 - 08.09.2017 under s. 154 of the Income Tax Act, 1961 (the Act) concerning AY. 2009-10.
The ground of appeal raised by assessee reads as under:
“1. The learned CIT(A) has erred in not granting the condonation of delay in as much as there is a mistake apparent from record and is reasonable cause for not filing the appeal in time. 2. The learned CIT(A) has erred in not considering the appeal to direct the AO to rectify the assessment order passed under Section 143(1) by CPC, Bangalore.”
The facts of the case are that in this case , the rectification order u/s. 154 of the Act has been passed by the CPC on 19.05.2011. However, the assessee has e-filed the appeal on 29.05.2016 which is beyond the time limit as per the provisions of Section 249 of the Act. As per the Form No.35, the date of service was 27.05.2011. The appeal should have been filed within 30 days from the date of service i.e. by 27.06.2011 but the appeal has not been filed within time and it was delayed by 5 years. Therefore, by making such a delay the assessee has not made any prayer for condonation of delay. It was an inordinate delay of 5 years and assessee has not given any cogent reason for condonation of delay and he has neither filed any application supported by affidavit. Learned CIT(A) dismissed the application under S.154 of the Act on account of inordinate delay.
Now, assessee has come before us and moved an application for condonation of delay supported by an affidavit. In this case, assessee is a super senior citizen aged about 82 years old. He stated in his affidavit for condonation of delay that he did not receive any intimation from the Department only when recovery notice came to him he was aware of the
ITA No. 534/Ahd/2019 [Bhagwandas Kantilal Desai Vs. ACIT] A.Y. 2009-10 - 3 - income tax proceedings. Since, assessee is 82 years old and he did not receive any communication from the Department and he had given cogent reason for delay in filing of appeal, therefore, we are satisfied with the cause of delay. Thus, we condone the intervening delay.
Now, we come to the merit of the case.
5.1 The assessee is a partner in the firm M/s. Amar Steel Industries. M/s. Amar Steel Industries has made a loss of Rs. 6,36,356/- which includes the remuneration to partners of Rs. 2,40,000/-. Therefore, the M/s. Amar Steel Industries while computing the income disallowed the remuneration of Rs. 2,40,000/- and reduced the loss to that extent resulting into book profit as loss. The computation of income of M/s. Amar Steel Industries has been produced before us. However, the ACIT CPC has made addition of remuneration while passing the Intimation under Section 143(1). The assessee preferred appeal before CIT(A) who has deleted the addition of Rs. 2,40,000 as made by the ACIT CPC. The CIT(A) Order for A.Y. 2009-2010 dated 10-01-2013 in case of M/s. Amar Steel Industries is forming part of paper book on Page No. 3 to 5. The assessee furnished the income tax return disclosing the remuneration of Rs. 2,40,000/- as per computation of income and same has been furnished before us. The ACIT CPC who has passed the Intimation under Section 143(1) of the Act has rectified the Intimation by making addition of remuneration of Rs. 2,40,000/- though the assessee has already made the addition in computation of income. This results into double addition.
5.2 As the assessee filed delayed application under S.154 of the Act and learned CIT(A) did not condone the delay and dismissed the appeal of the assessee and as we have already condone the delay, therefore, we set aside
ITA No. 534/Ahd/2019 [Bhagwandas Kantilal Desai Vs. ACIT] A.Y. 2009-10 - 4 -
this matter back to the file of the learned CIT(A) with the direction to decide the issue on merit and to verify whether the remuneration is already added by the assessee in his total income or not. If assessee has already added remuneration to the total income, then same addition is to be deleted.
In the result, the appeal filed by the Assessee is allowed for statistical purposes.
This Order pronounced in Open Court on 29/07/2022
Sd/- Sd/- (ANNAPURNA GUPTA) (MAHAVIR PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad: Dated 29/07/2022 True Copy S.K.SINHA आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. राज�व / Revenue 2. आवेदक / Assessee 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त- अपील / CIT (A) 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड� फाइल / Guard file. By order/आदेश से,
उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, अहमदाबाद ।