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Income Tax Appellate Tribunal, RAIPUR BENCH: RAIPUR
Before: SHRI RAVISH SOOD & SHRI ARUN KHODPIA
आदेश / O R D E R PER ARUN KHODPIA, ACCOUNTANT MEMBER:
The captioned appeal is instituted against the order of the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, dated 30.05.2022 for the AY 2010-11 by the assessee.
At the outset, it is noticed that appeal filed by the assessee was delayed by 207 days, for which, an affidavit was filed by the assessee signed by employee of the assessee’s company stating that appeal order
2 :: passed was received by him on behalf of the company through e-mail on 30.05.2022, but it was an assumption by him that the e-mail was in relation to appeal filed against the penalty order u/s.271(1B) of the Act, for which, the assessee has opted to avail DTVSV. Therefore, it was assumed that no further action is required. Subsequently, when the Director enquired about outstanding demand and status of the appeal with the Counsel, it come to the notice that the Ld.CIT(A)’s order has been passed on 30.05.2022 in relation to assessment order and not for penalty order. Under such circumstances, the act of passing of appellate order come to knowledge and therefore, it was requested that the delay caused may be condoned and appeal may kindly be admitted. Since, as explained by the employee of the company signed by Mr. Bijendra Kumar Chandrakar, that it was an inadvertent mistake on his part that there were two orders one u/s.143(3) r.w.s.147 of the Act, another u/s.271(1B) of the Act, the employee got confused and therefore, when the status was come to the knowledge of the company, they have filed the appeal. Since the delay is attributable to ignorance of knowledge of receipt of appellate order and the Director of the assessee’s company was not aware the receipt of the same, we find that there was a reasonable and sufficient cause for delay in filing of the appeal. Under such circumstances, the delay in filing of the appeal for 207 days sands condoned.
3 :: 3. The assessee has raised the following grounds of appeal:
1. Ld. CIT(A) erred in dismissing the appeal by erroneously treating it to be infructuous, without appreciating facts of case properly. Ld. CIT(A) has passed order without considering the written submission filed by appellant. Order passed by Ld. CIT(A) is illegal and contrary to the facts on records. There was no withdrawal of appeal by assessee.
2. Ld. CIT(A) erred in confirming addition/disallowance Rs. 18,11,4087-madc by AO on account of purchase, being 25% of value of purchases made from certain parties, holding that such purchases are bogus and not genuine. The addition made by AO and confirmed by CIT(A) is arbitrary, baseless, unfounded, without appreciating the facts & evidences and is not justified. - Rs.5,59,725/- 3. Without prejudice to ground no. 2, Ld. CIT(A) erred in confirming action of AO of making addition of Rs. 18,1 1,408/- on the basis of entries in regular books, after having rejected the same. 4. Ld. CIT(A) erred in confirming addition of Rs. 8,53,840/- made by AO on account of peak purchase in the account of suppliers. The addition made by AO and confirmed by Ld. C1T(A) is arbitrary, baseless and not justified. - Rs.2,63,837/- 5. Order passed by Ld. C1T(A) is illegal inasmuch as notice issued by AO u/s 148 is illegal, ab initio void. There was no material before the AO for formation of belief of escapement. 6. Order passed by Ld. C1T(A) is illegal inasmuch as the reasons recorded by AO for reopening of the case u/s 147 do not meet mandatory requirements of law. The assessment order passed by AO and upheld by C1T(A) is illegal, ab- initio void. 7. The appellant reserves the right to add, amend or modify any of the ground/s of appeal.
4. At the outset, the Ld.AR of the assessee has submitted that the appeal of the assessee was dismissed by the Ld.CIT(A) without appreciating the facts of the case properly. It was the submission that appeal of the assessee was dismissed by the Ld.CIT(A) observing that the assessee opted for Vivad-Se-Vishwas Scheme, vide application dated 19.05.2020. Therefore, the appeal of the assessee was treated as infructuous under the provisions of sub-sec.2 of Sec.4 of the Direct Tax Vivad Se Vishwas Act,
4 :: 2020. The Ld.AR further submitted that the assessee has opted for DTVSV, 2020 against the penalty order u/s.271(1B) of the Act, for which also an appeal was filed before the Ld.CIT(A), but Ld. CIT(A) mistakenly considered that DTVSV, 2020, the application so filed under VSVS was pertains to pending appeal before the Ld CIT(A) against the order of the AO u/s.143(3) r.w.s.147 of the Act. Therefore, the appeal decided by the Ld.CIT(A) was on mistaken belief, on wrong appreciation of the facts, and without considering the written submissions filed by the assessee.
Contrary to the submissions of the Ld.AR, the ld.Sr.DR on behalf of the department has submitted that, since the written submissions made by the assessee with respect to the order u/s.143 r.w.s.147 of the Act, were misjudged by the Ld.CIT(A) having mixed up with the another appeal of the assessee against penalty order u/s.271(1B) of the Act. In the interest of natural justice, the issues in the present appeal which were not decided by the Ld.CIT(A) on merits, should be restored back to the file of the Ld.CIT(A) for adjudication of the same.
We have heard the rival contentions and as apprised by the Ld.AR of the assessee that the facts of the case were not appreciated properly by the Ld.CIT(A) and has dismissed the appeal of the assessee based on its application under DTVSV, 2020, against a separate order by the AO regarding penalty u/s.271(1B) of the Act. Therefore, we are of the considered opinion that the matter should have been discussed, deliberated, and decided on merits by the Ld.CIT(A). In such a situation,
5 :: without dealing with the issues raised in the present appeal, in the interest of justice, we find it appropriate to restore the matter back to the file of the Ld. CIT(A) for adjudication afresh and we direct to do so. Needless to say, reasonable opportunity of being heard and represent its case, to be granted to the assessee.
In the result, appeal filed by the assessee partly allowed for fresh adjudication in terms of our observations hereinabove.
Order pronounced on the 11th day of August 2023, in Raipur. Sd/- Sd/- (रवीश सूद) (अरुण खोडपिया) (ARUN KHODPIA) (RAVISH SOOD) लेखा सदस्य/ACCOUNTANT MEMBER न्यायिक सदस्य/JUDICIAL MEMBER रायपुरयपुर/Raipur, दिनांकंक/Dated: 11th August, 2023. TLN, Sr.PS (on Tour) आदेश की प्रतिलिपि अग्रेषित त/Copy to: 1. अपीलार्थीर्थी / The Appellant 2. प्रत्यर्थी / The Respondent 3. आयकर आयुक्त (अपील) / The CIT(A)-1, Raipur (C.G) 4. The Pr.CIT-1, Raipur (C.G) 5. विभागीय प्रतिनिधि, आयकर अपीलीय अधिकरण करण, रायपुरयपुर बेंच, रायपुरयपुर / The DR, ITAT, Raipur Bench, Raipur. 6. गार्ड फाईलईल/Guard File आदेशानुसार र / By Order
वरिष्ठष्ठ निजी सचिव व / Sr. Private Secretary आयकर अपीलीय अधिकरणकरण, रायपुरयपुर / ITAT, Raipur