NAYAN PRAJAPATI,GOVIND COLONY vs. INCOME TAX OFFICER WARD-4(4) INDORE, INDORE
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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI VIJAY PAL RAO & SHRI B.M. BIYANI
आदेश / O R D E R
Per B.M. Biyani, A.M.:
Feeling aggrieved by appeal-order dated 23.02.2024 passed by learned Commissioner of Income-Tax (Appeals)-NFAC, Delhi [“CIT(A)”] which in turn arises out of assessment-order dated 17.12.2018 passed by learned ITO- 4(4), Indore [“AO”] u/s 144/147 of Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2011-12, the assessee has filed this appeal.
Heard the learned Representatives of both sides and case records perused.
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Shri Nayan Prajapati, Indore ITA No. 165/Ind/2024 - AY 2011-12
Ld. AR for assessee drew our attention to the impugned order passed
by CIT(A) and pointed out that the Ld. CIT(A) has dismissed assessee’s first-
appeal on the reasoning that the said appeal was time-barred having been
filed on 23.03.2019 after expiry of 96 days from assessment-order dated
17.12.2018 passed by AO, which was beyond the statutory time-period of 30
days prescribed in section 249(2) of the Act. But the correct fact is that the
assessment-order dated 17.12.2018 alongwith demand-notice u/s 156 was
actually served upon assessee on 20.03.2019 which is clearly mentioned in
the acknowledgement given by assessee to department at the time of service;
the assessee’s acknowledgement with date and signature appearing on the
demand-notice available in file of department as obtained by assessee
through inspection of departmental record, is scanned and re-produced
below:
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Shri Nayan Prajapati, Indore ITA No. 165/Ind/2024 - AY 2011-12
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Shri Nayan Prajapati, Indore ITA No. 165/Ind/2024 - AY 2011-12
Thus, Ld. AR submitted, the assessment-order though passed on
17.12.2018 was actually served upon assessee on 20.03.2019. The assessee
has also mentioned these very details in the space prescribed in Form No.
35 filed to the CIT(A) as under:
2 Details of the order appealed against/ Appeal u/s 248
b Date of order 17/12/2018
c Date of service of Order / Notice of Demand 20/03/2019
Furthermore, the assessee has also filed a solemnized affidavit making
averment that the assessment-order was served upon him on 20.03.0219.
In the light of above facts, Ld. AR submitted that the first-appeal was
timely filed on 23.03.2019 after service of assessment-order/demand-notice
on 20.03.2019 and as such there was no delay in filing first-appeal. Ld. AR,
therefore, prayed to restore this matter to lower-authorities for adjudication
on merit.
Ld. DR agreed to assessee’s submission but, however, submitted that
the AO’s assessment-order was also ex-parte u/s 144 in absence of details
from assessee, therefore the CIT(A) cannot carry this matter to its logical
conclusion. Hence, in the situation, it would be more appropriate to restore
this matter back to the level of AO instead of CIT(A). Ld. AR for assessee
agreed.
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Shri Nayan Prajapati, Indore ITA No. 165/Ind/2024 - AY 2011-12
In view of above submissions of parties, firstly we agree that the
assessee filed first-appeal in statutory time after service of demand-notice,
therefore there was no delay in filing first-appeal. We next agree to the
consensus made by both sides and also having regard to the principle of
natural justice and fair play, we deem it fit to remand this matter to AO for
adjudication afresh after giving opportunity of hearing to the assessee
uninfluenced by his earlier order in any manner. The assessee is also
directed to ensure participation in the hearings as may be fixed by AO and
do not seek unnecessary adjournments failing which the AO shall be at
liberty to pass appropriate order in accordance with law.
Resultantly, this appeal is allowed for statistical purpose.
Order pronounced in open court on 27.06.2024.
Sd/- sd/- (VIJAY PAL RAO) (B.M. BIYANI) JUDICIAL MEMBER ACCOUNTANT MEMBER Indore िदनांक /Dated : 27.06.2024. CPU/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPYAssistant Registrar Income Tax Appellate Tribunal Indore Bench, Indore
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