MOHAMED LAIK MOHAMMED JUMMAN QURESHI,BHIWANDI vs. ITO WD 1(2), KALYAN

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ITA 1523/MUM/2015Status: DisposedITAT Mumbai01 July 2016AY 2004-053 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal found that the CIT(A) dismissed the appeal for delay without a condonation petition. The assessee was granted one more opportunity to file a condonation petition before the CIT(A) to decide the issue afresh.

What were the facts?

The assessee's appeal before the CIT(A) was dismissed due to delay. The assessee contended that they never received the original assessment order and filed the appeal after obtaining a certified copy, thus arguing there was no delay.

What were the issues?

Whether the CIT(A) erred in dismissing the appeal on the ground of delay without appreciating the assessee's contention of not receiving the original order and the subsequent timely filing of appeal.

Which sections of the Income-tax Act were involved?

Section 143(3),Section 249(2)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “SMC” BENCH: MUMBAI

Before: Hon’ble Sri Mahavir Singh, JM

For the Appellant/assessee : Mohammed Laik Mohammed Jumman Qureshi, assessee For the Respondent/ department: Shri A.Ramachandran, ld.Sr.DR Date of Hearing: 27-06-2016 Date of Pronouncement: 01 -07-2016 ORDER Shri Mahavir Singh, Judicial Member: This appeal by the assessee is arising out of order of CIT(A) in appeal No. 215/08-09 dated 24-01-2014. Assessment was framed by I.T.O. Ward 1(2), Kalyan for the assessment year 2004-05 u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 29-12-2006.

2.

The only issue in this appeal of assessee is against the order of the CIT(A) in dismissing the appeal of assessee on the ground of delay, whereas there was no delay according to assessee. Today when the case was called for hearing the assessee himself presented before us and drew our attention to ground no.1, which reads as under:- 1. On the facts and in law, the Hon. CIT(A) erred in dismissing the appeal on the ground of delay in filing of appeal. (a) without appreciating the fact that the appellant had never received the original assessment order framed u/s. 143(3) of the I.T Act 1961 and the appeal was filed on 22.08.2008, after obtaining from the AO certified copy of the asst. order on 23.07.2008, and therefore the appeal was filed within the time period allowed by Sec. 249(2) of the I.T Act 1961 and there was no delay in filing of appeal warranting dismissal.

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(b) without providing the appellant with any opportunity to explain the cause for the alleged delay in filing of appeal as intimated by the ld.AO in ITNS-51. ( c) inspite of proceeding with the hearing on several occasions and calling for remand report of the ld.AO on the various grounds raised and comments of the appellant on the remand report and proceeding to hear the merits of the appeal. “

3.

At the outset, it is noticed that the CIT(A) has dismissed this appeal as unadmiited for the reason that there was delay in filing of appeal, but no condonation petition was filed by the assessee. But I find that the assessee now before has raised this ground, as reproduced above, that there is no delay. In these facts, I am of the view that even if there is delay the assessee should be allowed one more opportunity to file condonation petition and after that the CIT(A) can decide the issue of condonation of delay of this appeal. When this was confronted to the ld.Sr.DR, he fairly conceded that the issue can be remitted back to the file of the CIT(A) for one more opportunity to the assessee to file the condonation petition and then decide the issue afresh. Accordingly, I set aside the order of the CIT(A) and remand the matter back to him for allowing one more opportunity for filing of the condonation petition and then decide the issue of condonation and if delay is decided, then appeal of the assessee be also decided on merits. Accordingly, the appeal of the assessee is allowed for statistical purpose.

4.

In the result, the appeal of the assessee is allowed for statistical purpose. Order pronounced in the open court on 01 -07-2016

Sd/- MAHAVIR SINGH JUDICIAL MEMBER Dated : 01 -07-2016 *PP /Sr.P.S.

2 Mohammed Laik Mohammed Jumman Qureshi Copy of the order forwarded to: 1. Appellant/Assessee: Mohammed Laik Mohammed Juman Qureshi Prop: M/s. Saqlaini Textiles, 1105-C, Faird Baug, Behind Aminbad Nadi Naka, BHIWANDI 421302 Dist Thane. 2 Respondent : The Income Tax Officer Ward 1(2), Rani Mansion, 2nd Floor Murbad Road, Kalyan - 421301. The CIT, 3. The CIT(A), Mumbai 4. DR, Mumbai Benches, Mumbai 5. By order, Asstt. Registrar Sr.No. Particulars Date Initials Person Concerned 1 Dictation given on 27/6/16 PP Sr.PS 2 Draft placed before author 30/7/16 JM 3 Draft proposed/placed before N/A - - The second Member 4 Draft discussed/approved by - - - Second member 5 Approved Draft comes to the Sr.PS 30/7/16 6 Kept for pronouncement on 1/7/16 PP SPS 7 File sent to the Bench Clerk 1/7/16 8 Date on which file goes to the Head Clerk 9 Date of dispatch of Order

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