PARASURAM KESARI,VISAKHAPATNAM vs. INCOME TAX OFFICER, WARD-5(4), VISAKHAPATNAM
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Income Tax Appellate Tribunal, VISAKHAPATNAM BENCH, VISAKHAPATNAM
Before: SHRI DUVVURU RL REDDY, HON’BLE & SHRI S BALAKRISHNAN, HON’BLE
PER S. BALAKRISHNAN, Accountant Member :
This appeal filed by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [NFAC] in DIN & Order No. ITBA/NFAC/S/250/2023-24/1054056988(1), dated 30/06/2023
2 for the AY 2012-13 arising out of the order passed U/s. 143(3)
r.w.s 147 of the Income Tax Act, 1961 [the Act].
Briefly stated the facts of the case are that the assessee is
an individual engaged in transport business in the name and
style of M/s. Mahendra Transport Agency. The assessee has filed
his return of income for the AY 2012-13 on 25/09/2012 declaring
a total income of Rs. 4,86,590/-. Subsequently, the case was
scrutinized and an order U/s. 143(3) was passed on 28/02/2014
assessing the total income of the assessee at Rs. 5,89,190/-.
Thereafter, as per the information available on record, the Ld. AO
observed that the assessee has made cash payments exceeding
the threshold limit as prescribed under the provisions of section
40A(3) of the Act aggregating to Rs. 56,57,210/- towards lorry
hire charges. Therefore, the Ld. AO issued a notice U/s. 148 of
the Act on 11/12/2015 which was served on 15/12/2015. In
response, the assessee filed his revised return of income for the
AY 2012-13 on 11/1/2016 declaring a total income of Rs.
5,89,187/-. Thereafter, the Ld. AO issued a notice U/s. 142(1) of
the Act along with questionnaire and in reply the Authorized
Representative of the assessee appeared from time to time before
the Ld. AO and furnished the details and information as called
3 for by the Ld. AO. On verification of the details furnished by the
assessee and also after discussing various issues with the
assessee’s Authorized Representative, the Ld. AO completed the
re-assessment proceedings U/s. 143(3) r.w.s 147 of the Act vide
order dated 30/12/2016 wherein the Ld. AO made certain
additions aggregating to Rs. 35,39,213/- and assessed the total
income at Rs. 41,28,403/-. Aggrieved by the order of the Ld. AO,
the assessee filed an appeal before the Ld. CIT(A) with a delay of
153 days.
Before the Ld. CIT (A) the assessee filed an affidavit with a
request to condone the delay wherein it was explained that due to
multiple health issues the assessee could not pursue his case
with the Authorized Representative and therefore the appeal was
filed with a delay of 153 days before the First Appellate
Authority. However, the Ld. CIT(A) did not consider the
submissions of the assessee with regard to condonation of delay
and observed that the reasons explained by the assessee for
belated filing of the appeal are vague even though it is not
coupled with a malafide intention. Thus, Ld. CIT(A) rejected the
condonation petition filed by the assessee and dismissed the
appeal. Aggrieved by the order of the Ld. CIT(A), the assessee
4 filed the present appeal before us by raising the following
grounds of appeal:
“1. That under the facts and circumstances of the case, the orders passed U/s. 147 r.w.s 143(3) of the Act dated 30/12/2016 confirmed by CIT (A), NFAC dated 30/06/2023 is not in accordance with the provisions of law.
The Ld.CIT(A) ought to have condoned the delay of 153 days in filing the appeal, when the delay was explained with reasonable cause vide petition filed before the CIT(A) along with affidavit stating therein medical reasons.
The Ld. CIT(A) erred in observing that assessee failed to furnish evidence in support of his case explaining the delay, which was due to medical reasons when in fact a medical certificate was filed along with condonation petition, filed manually and also electronically.
The Ld. CIT(A) without considering the following grounds of appeal urged before him which he ought to have done so, disposed off the appeal upon which the assessee is aggrieved.
“1. Disallowance of expenditure in excess of Rs. 35,000/- U/s. 40A(3) without considering the nature and practical difficulties of the business is not valid in law. 2. The present reopened assessment framed pursuant to a notice issued U/s. 148 of the Act is illegal, arbitrary and without fulfillment of the conditions precedent for the issuance of the said notice. 3. Reopening of assessment without replying to the objections filed is not valid. 4. Reopening of assessment on the basis of change of opinion is bad in law. 5. Levy of interest U/s. 234B is not warranted.
5 6. Addition being technical in nature, levy of penalty U/s. 271(1)(c) is not warranted. 7. The appellant craves leave to add, alter and amend the grounds as the occasion arises.”
Apart from the above the following are the other grounds of appeal raised before Ld. CIT(A).
The Ld. AO ought to have known that there was no assessment order existence to enable him to reopen the same by issue of notice U/s. 148 of the Act, dated 11/12/2015 because the original Assessment Order passed U/s. 143(3) of the Act dated 28/02/2014 by virtue of the order passed U/s. 263 of the IT Act dated 27/11/2015 has got invalidated and has become non-existence under the law. In this scenario the very issue of notice U/s. 148 of the Act dated 11/12/2015 is bad in law and the subsequent assessment thereto becomes null and void. 2. The Ld. AO instead of following the directions of the Ld. Pr. CIT by virtue of order passed U/s. 263 of the Act dated 27/11/2015 wrongly assumed jurisdiction by issue of notice U/s. 148 of the Act. 3. The Ld. AO has formed the reason to believe basin on the observations of the Ld. Pr. CIT in the order passed U/s. 263 of the Act when the statute contemplates the AO to apply himself in forming his own belief with reasons of the income escaping assessment so much so his predecessor while completing the assessment U/s. 143(3) of the Act has examined the subject issue. 4. The Ld. AO is not correct in making addition of Rs. 1,78,990/- by alleging that few parties, on direct enquiry by the AO have denied to have made the transactions with the assessee which aspect was never put to the assessee for his rebuttal and which is also factually incorrect. 5. The Ld. AO is not correct in making addition of Rs. 7,23,323/- by alleging that few parties on direct enquiry by the AO, have confirmed certain amount as against the amount actually paid by the assessee which aspect was never put to the
6 assessee for his rebuttal and which is also factually incorrect.”
For these and such other grounds that may be urged at the time of hearing of subject appeal the appellant prays that the orders of the Ld. CIT(A) passed U/s. 250 of the Act are to be set-aside in the interest of justice.”
At the outset, the Ld. Counsel for the assessee submitted
that the reason for the delay of 153 days in filing the appeal
before the Ld. CIT(A)-NFAC is due to ill health of the assessee.
The Ld. AR drawn our attention the medical certificate and the
affidavit filed by the assessee before the Ld. CIT (A)-NFAC and
submitted that even though the assessee has furnished the
medical certificate manually and electronically before the Ld.
CIT(A)-NFAC along with an affidavit, the Ld. CIT(A)-NFAC did not
consider the assessee’s plea for condonation of delay and erred in
dismissing the assessee’s appeal. The Ld. AR therefore pleaded
that the matter may be remitted back to the file of the Ld CIT (A)-NFAC in order to provide one more opportunity to the assessee of being heard.
On the other hand, the Ld. DR relied on the orders of the Ld.
Revenue Authorities and argued in support of the decision of the
Ld. CIT(A)-NFAC
We have heard both the sides and perused the material on
record as well as the orders of the Ld. Revenue Authorities. It is a
fact that there is a delay of 153 days in filing the appeal before
the Ld. CIT(A)-NFAC. On the issue of condonation of delay, the
assessee explained the reasons for belated filing of the appeal
before the Ld. CIT(A) by stating that due to multiple health issues,
the assessee could not pursue the case with the Authorized
Representative and in support of the same the assessee has also
furnished the Medical Certificate issued by the Doctor. Ignoring
the assessee’s plea for condonation of delay, the Ld. CIT(A)
dismissed the appeal. In our considered view the Ld. CIT (A)-NFAC
ought to have decided the case on merits by condoning the delay
of 153 days in filing the appeal before him as the assessee has
explained the reason that prevented the assessee in filing the
appeal belatedly and also submitted the Medical Certificate.
Under these circumstances, we are of the view that the assessee
was prevented by a reasonable and sufficient cause in filing the
appeal beyond the prescribed time limit before the Ld. CIT(A)-
NFAC and therefore, we hereby remit the matter back to the Ld.
CIT(A)-NFAC with a direction to condone the delay of 153 days in
8 filing the appeal before the First Appellate Authority and decide the issues raised before him on merits. It is ordered accordingly.
In the result, appeal of the assessee is allowed for statistical purposes.
Pronounced in the open Court on 22nd November, 2023.
Sd/- Sd/- (दु�वू� आर.एल रे�डी) (एस बालाकृ�णन) (DUVVURU RL REDDY) (S.BALAKRISHNAN) �या�यकसद�य/JUDICIAL MEMBER लेखा सद�य/ACCOUNTANT MEMBER Dated : 22.11.2023 OKK - SPS आदेश क� ��त�ल�प अ�े�षत/Copy of the order forwarded to:- �नधा�रती/ The Assessee – Mr. Parasuram Kesari, 26-1-1, NH-5, 1. Chinna Gantyada, Old Gajuwaka, Visakhapatnam-530026, Andhra Pradesh. राज�व/The Revenue – Income Tax Officer, O/o. ITO, Infinity Towers, 2. Ward-5(4), Visakhapatnam, Andhra Pradesh. 3. The Principal Commissioner of Income Tax, आयकर आयु�त (अपील)/ The Commissioner of Income Tax 4. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, �वशाखापटणम/ DR, ITAT, 5. Visakhapatnam गाड� फ़ाईल / Guard file 6. आदेशानुसार / BY ORDER Sr. Private Secretary ITAT, Visakhapatnam
