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Income Tax Appellate Tribunal, PUNE “B” BENCH : PUNE
Before: SHRI SATBEER SINGH GODARA & DR. DIPAK P. RIPOTE
BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER I.T.A.Nos.18 & 19/PUN./2024 Assessment Years 2017-2018 & 2018-2019 Shri Premprakash The Income Tax Officer, Ishprakash Sharma, Ward – 2 (1), Kendriya Pushpam Apartments, vs. Flat No.3, B-Block, Rajasva Bhavan, Gadkari Dhallubhai Patel Colony, Chowk, Old Agra Road, Trimbak Road, Nashik. Maharashtra. Nashik – 422 002. PIN – 422 002 Maharashtra. PAN APGPS855Q (Appellant) (Respondent) For Assessee : Shri Sanket Joshi For Revenue : Shri Sourabh Nayak, Addl.CIT Date of Hearing : 20.02.2024 Date of Pronouncement : 20.02.2024 ORDER PER SATBEER SINGH GODARA, J.M. :
These assessee’s twin appeals for assessment years 2017-2018 and 2018-19, arise against the National Faceless Appeal Centre’s [in short the “NFAC”] Delhi’s as many Dins & Orders nos. ITBA/NFAC/S/250/2023-24/1059131155(1), 1059131824(1), both dated 28.12.2023, involving proceedings u/sec.270A of the Income Tax Act, 1961 (in short “the Act”).
Heard both the parties at length. Case files perused.
2 I.T.A.Nos. 18 & 19/PUN./2024 2. The assessee pleads the following identical substantive grounds in each of the instant appeal :
“The learned CIT-(A) erred in not admitting the appeal for adjudication on the ground that the appeal was delayed by 5 days whereas the appellant had not filed any application for condonation of delay without appreciating that the due date u/s 249(2) for filing appeal against the penalty order u/s 270A dated 21.01.2022 was 20.02.2022 which fell between Covid period of 15.03.2020 upto 29.02.2022 and therefore, the extended due date for filing present appeal as per Supreme Court decision in 438 ITR 296 was 29.05.2022 and hence, the impugned appeal filed on 25.02.2022 was within time limit and not delayed and therefore, the CIT(A) ought to have adjudicated the appeal on merits.
The assessee submits that in the present case, the exact limb of section 270A(9) was neither stated by A.O. in the asst, order u/s 147 nor in the penalty notice u/s 274 r.w.s 270A and therefore, the initiation of penalty proceedings u/s 270A without communicating the exact charge to the assessee was bad in law and thus, the penalty order u/s 270A in consequence of such invalid notice may be declared as null and void in law.
3 I.T.A.Nos. 18 & 19/PUN./2024 3. The assessee submits that in the present case, the exact limb of section 270A(9) was not specified by the A.O. at the time of levying penalty in the penalty order u/s 270A and therefore, the penalty order u/s 270A may be declared as bad in law.
4. The assessee submits that the legal issue raised vide ground nos. 2 to 3 is squarely covered in favour of the assessee by the law laid down by Hon’ble ITAT, Pune in case of Kishor Digambar Patil v. ITO [ITA.Nos.54&55/PUNE/2023] rendered on identical facts, as well as Delhi High Court decision in case of Prem Brothers Infrastructure LLP [334 CTR 363] and all the relevant facts are already available on record and therefore, it is prayed that the said issue may please be adjudicated by Hon’ble ITAT without remitting the matter back to CIT(A) in view of the ratio laid down by Hon’ble Bombay High Court in case of Coca Cola India (P) Ltd. [368 ITR 487].
Without prejudice to the above grounds, the assessee submits that the levy of penalty u/s 270A is also not justified on merits and hence, the same may please be deleted.
The appellant craves leave to add/alter/amend any of the grounds of appeal.”
4 I.T.A.Nos. 18 & 19/PUN./2024 3. It emerges during the course of hearing with the able assistance coming from both the parties that we hardly need to delve with the relevant factual matrix at length since the learned CIT(A) has refused to condone the assessee’s 05 days each in filing of its lower appeals. He had admittedly filed the said first appeals before the CIT(A)/NFAC on 25.02.2022; covered during covid pandemic outbreak period between 15.03.2020 to 28.02.2022, already ordered to be excluded from all limitation(s) as per hon’ble apex court’s directions in Cognizance for Extension of Limitation, In re 438 ITR 296 (SC) read with judgment in Cognizance for Extension of Limitation, In re 432 ITR 206 (SC). That being the case, NFAC is directed to re-decide the assessee’s twin lower appeals as per law afresh, preferably within three effective opportunities of hearing. Ordered accordingly.
These assessee’s twin appeals I.T.A.Nos.18 & 19/PUN./2024 are allowed for statistical purposes in above terms. A copy of this common order be placed in the respective case files.
Order pronounced in the open Court on 20.02.2024.