SKILL DYE CHEM PVT. LTD.,KOLKATA vs. D.C.I.T., CIRCLE - 7(1), KOLKATA, KOLKATA

आयकर अपीलीय अधिकरण कोलकाता 'बी' पीठ, कोलकाता में IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘B’ BENCH, KOLKATA श्री संजय गगग, न्याधयक सदस्य एवं श्री संजय अवस्थी, लेखा सदस्य के समक्ष Before SRI SANJAY GARG, JUDICIAL MEMBER & SRI SANJAY AWASTHI, ACCOUNTANT MEMBER I.T.A. No.: 1014/KOL/2024 Assessment Year: 2013-14 Skill Dye Chem Pvt. Ltd……………..…………………………………….Appellant [PAN: AABCS 4396 M] Vs. DCIT, Circle-7(1), Kolkata.....................................................Respondent Appearances: Assessee represented by: Miraj D. Shah, AR. Department represented by: P.P. Barman, Addl. CIT, Sr. DR. Date of concluding the hearing : August 5th, 2024 Date of pronouncing the order : August 28th, 2024 ORDER Per Sanjay Awasthi, Accountant Member: In this case there is a delay of 400 days in filing of this appeal. The appellant has filed a detailed letter requesting for condonation of delay, listing out the reasons for delay and also relying on a number of authorities in support of justification for said delay. Some relevant extracts from the said letter deserve to be mentioned which are as under: “2. The assessee had filed a rectification petition online on 28/02/2023 to get the CIT(Appeals) order dated 01/02/2023 rectified which was

I.T.A. No.: 1014/KOL/2024 Assessment Year: 2013-14 Skill Dye Chem Pvt. Ltd. dismissed on wrong facts that the assessee has opted for Vivad se Vishwas Scheme. (Screenshot of the same is attached herewith). 3. The assessee was in bonafied belief that appeal will be restored and will be heard on merit and hence did not took any further action. 4. The Assessee received a call from the assessing officer’s office for collection of demand in the mid-month of April 2024. The assessee informed the assessing officer that the appeal was pending and stay petition was also filed as they have filed rectification to get the CIT(Appeals) order rectified and must have been restored. The assessing officer then informed the assessee that the assessee’s appeal was dismissed and was not restored till date. 5. The assessee immediately notified their Counsel regarding the whole scenario. The Counsel of the assessee then took immediate steps and the assessee is now filing this by filing appropriate condonation petition. 6. It is submitted that considering the above facts and circumstances of the case the assessee humbly prays that the delay in filing of appeal may be condoned considering the above circumstances. 7. It is humbly submitted that the delay of 372 days in filing of the appeal was not due to any malafide intention or negligence on our part but was due to the above said fact, thus the delay was not intentional. It is therefore requested that the delay in filing of the appeal be condoned.” 1.1. Considering the detailed reasons contained in the said letter requesting condonation of delay, the delay is hereby condoned and the appeal is admitted for adjudication. 2. Right at the outset, it was brought to our notice that the impugned order was passed by dismissing the appeal on the basis of a Direct Taxes Vivad Se Vishwas (in short ‘DTVSV’) Scheme declaration for this very same assessment year, which was available with the Commissioner of Income Tax (Appeals)-NFAC, Delhi [hereinafter referred to as ld. 'CIT(A)'] through a certificate in Form No. 5 dated 24.05.2022. The ld. A/R pointed out that the DTVSV Certificate in question was for regular assessment completed u/s 143(3) of the Income Tax Act, 1961 (in short the 'Act') vide the Assessing Officer’s (hereinafter referred to as ld. 'AO') order dated 30.03.2016. 2.1. It is seen that the appellant has specifically challenged this action of ld. CIT(A) through grounds of appeal nos. 2, 3 & 4 as under:

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I.T.A. No.: 1014/KOL/2024 Assessment Year: 2013-14 Skill Dye Chem Pvt. Ltd. “2. For that in the facts and circumstances of the case the Ld. CIT (Appeals), NFAC erred in holding that the Appeal preferred by the Appellant against the Assessment Order passed by the Assessing Officer on 15/02/2021, u/s 147 read with Section 144B of the Income Tax Act, 1961, was covered by the Vivad Se Vishwas Scheme. 3. For that the Ld. CIT (Appeals) failed to appreciate that the Appellant’s application under the Vivad Se Vishwas Scheme vide Declaration dated 20.03.21 was against the original Assessment Order passed by the Assessing Officer on 30/03/2016, u/s 143(3) of the Income Tax Act,1961. Thus the order of the Ld. CIT(Appeals) is erroneous and perverse. 4. For that in the facts and circumstances of the case the Order passed by the Ld. CIT (Appeals) on 01/02/2023 may kindly be set-aside and the appeal be decided on merits.” 2.2. Ld. D/R has relied on the ld. AO’s order. 2.3. A perusal of the impugned order indeed shows that the ld. CIT(A) has merely recorded the fact of DTVSV Certificate for AY 2013-14 in the appellant’s own case and dismissed the appeal without adjudicating on either merits or the technical/legal issues surrounding assumption of jurisdiction by the ld. AO. In light of this fact, it will be appropriate to remand the case back to the file of ld. CIT(A) to adjudicate on all 24 grounds of appeal before him, including a 25th additional ground challenging the assumption of jurisdiction by the ld. AO for issuance of notice u/s 148 & 143(2) of the Act. The ld. CIT(A) is directed accordingly. The ld. CIT(A) will re-verify the fact of DTVSV Certificate as pertaining to regular assessment u/s 143(3) of the Act. 2.4. In light of this observations, the remaining grounds of appeal are not adjudicated as the matter is remanded back to the file of ld. CIT(A). 3. Before parting with this issue, ground no. 5 requesting for levying of cost on an appropriate authority presumably for dismissing the impugned appeal on a flawed understanding of the factual situation needs to be briefly discussed. The ld. CIT(A) ought to have confronted the appellant with the DTVSV Certificate to obtain a response. The one-sided approach visible in the impugned order is worthy of criticism but considering that no mala fide intention is evident, there is no occasion for awarding costs.

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I.T.A. No.: 1014/KOL/2024 Assessment Year: 2013-14 Skill Dye Chem Pvt. Ltd. 4. In the result, the appeal filed by the assessee is partly allowed for statistical purposes. Order pronounced in the open Court on 28th August, 2024. Sd/- Sd/- [Sanjay Garg] [Sanjay Awasthi] Judicial Member Accountant Member Dated: 28.08.2024 Bidhan (P.S.) Copy of the order forwarded to: 1. Skill Dye Chem Pvt. Ltd., Saket Building, Ho Chi Minh Sarani, Middleton Row, Kolkata, West Bengal, 700071. 2. DCIT, Circle-7(1), Kolkata. 3. CIT(A)-NFAC, Delhi. 4. CIT- 5. CIT(DR), Kolkata Benches, Kolkata. //True copy // By order

Assistant Registrar ITAT, Kolkata Benches Kolkata

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