Itat/278/2023 Ia No: Ga/1/2023 Concrete Consultancy Services Private Limited v. Principal Commissioner Of Income Tax-1, Kolkata & Ors

OD–12 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITAT/278/2023IA NO: GA/1/2023CONCRETE CONSULTANCY SERVICES PRIVATE LIMITEDVS.PRINCIPAL COMMISSIONER OF INCOME TAX-1, KOLKATA & ORS. BEFORE : THE HON’BLE THE CHIEF JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE SUPRATIM BHATTACHARYADate : 5[th] January, 2024 Appearance :Mr. Pratyush Jhunjhunwalla, Adv.led by Mr. J.P. Khaitan, Sr. Adv.Ms. Sritapa Sinha, Adv.Mr. Samit Rudra, Adv.…for appellantMr. Amit Sharma, Adv.…for respondent The Court : This appeal by the assessee filed under Section 260A of theIncome Tax Act, 1961 (the Act) is directed against the order dated May 01, 2023passed by the Income Tax Appellate Tribunal, “B” Bench, Kolkata (Tribunal) inI.T.A. No. 447/Kol/2022 for the assessment year 2015-16. The assessee has raised the following substantial questions of law forconsideration : i) ii) iii) iv) v) vi) Whether there was any delay in preferring the appeal before the Tribunalas the appellant was not aware of the order dated April 04, 2019 and hadpreferred the appeal before the Tribunal within 60 days of being aware ofthe order dated April 04, 2019 ? Whether it is incumbent upon for the order of the Commissioner of IncomeTax (Appeals) to be communicated in accordance with section 282 of theIncome Tax Act, 1961 read with rule 282 of the Income Tax Rules, 1962 ?Whether the Commissioner of Income Tax (Appeals) is also required toserve the notice by affixing the same in accordance with the provisions ofthe Code of Civil Procedure, 1908, before passing an ex-parte order ?Assuming though not admitting that there was delay in preferring theappeal, whether the non-cooperation and departure of an employee issufficient cause for condonation of delay in preferring the appeal and thefindings and observations of the Tribunal in this regard are contrary tolaw, erroneous and perverse ? Whether the difference in the amount of loans taken can be added undersection 68 of the Act when the show cause notice was restricted only tothe loans received from related parties and the amount of increase did notreflect any credit entry and was only the differential value and the findingsand observations of all the lower authorities including the Tribunal, in thisregard, are perverse ? Whether the loans taken by the appellant were genuine and the identityand creditworthiness of the lenders were established and as such no addition could have been made under section 68 of the Act and thefindings and observations of all the lower authorities in this regard areperverse ? We have heard Mr. Pratyush Jhunjhunwalla, learned Counsel, led by Mr.J.P. Khaitan, learned Senior Advocate appearing for the appellant and Mr. AmitSharma, learned standing Counsel for the respondent department. It may not be necessary for the Court to go into the facts of the case sincethe learned Tribunal has not gone into the facts but dismissed the appeal on theground of delay and laches. To be noted, that the appeal filed by the assesseebefore the Commissioner of Income tax (Appeals) 2, Kolkata [CIT(A)] against theorder of assessment dated 9[th] November, 2017 was dismissed by order dated 4[th]April, 2019 as the authorised representative of the assessee did not appear inthe matter. The delay of 1000 days has been computed by taking intoconsideration the date of the order passed by the CIT(A), not the date on whichthe order was received by the appellant/assessee. It may not be necessary for the Court to go into the facts of the case sincethe learned Tribunal has not gone into the facts but dismissed the appeal on theground of delay and laches. To be noted, that the appeal filed by the assesseebefore the Commissioner of Income tax (Appeals) 2, Kolkata [CIT(A)] against theorder of assessment dated 9[th] November, 2017 was dismissed by order dated 4[th]April, 2019 as the authorised representative of the assessee did not appear inthe matter. The delay of 1000 days has been computed by taking intoconsideration the date of the order passed by the CIT(A), not the date on whichthe order was received by the appellant/assessee. Be that as it may, in several matters revenue has also been regularly filingappeals challenging the orders passed by the learned Tribunal where the delay ismore than 500 days and the Court has exercised discretion and condoned thedelay only with a view that these appeals filed under Section 260A of the Act andCourt is required to consider whether any substantial question of law arises forconsideration. It is true that in certain appeals filed by the revenue where thedelay is more than 1000 days and remains totally unexplained, Court hasrefused to exercise any discretion in favour of the appellant. In the instant case, we find that the assessee had cooperated in the assessment proceedings madeunder Section 143(3) of the Act, filed replies to the Section 142(1) notice issuedby the Assessing Officer. Therefore, it cannot be said that the assessee was notdiligent in prosecuting the matter. The explanation given by the assessee for notproperly defending the matter before the CIT(A) was that a disgruntle employeeof the assessee who was handling the matter had purposely not devotedattention to the same and the notice which was sent by the Department had alsobeen returned on the ground of insufficient address. In our view, technicalitiesshould not stand in the way of the assessee being able to agitate the matter onmerits. Therefore, we are of the view that one more opportunity can be grantedto the assessee to go before the CIT(A) and contest their appeal on merits. For the above reasons, the appeal is allowed. The order passed by thelearned Tribunal and the order passed by the CIT(A) dated 4[th] April, 2019 is setaside and the matter stands remanded to the CIT(A) for considering the appealpetition on merits and in accordance with law. The stay application IA No: GA/1/2023 stands closed. The assessee shall be informed about the date on which the appeal will betaken up for hearing and on the said date the assessee shall not take anyadjournment and the assessee shall cooperate with the expeditious disposal ofthe appeal. In the event the assessee adopts any dilatory tactics, benefit of this orderwill not enure in favour of the assessee and the appeal will stand automaticallydismissed without any reference to this Court. In this matter, Mr. Amit Sharma, standing Counsel has appeared for theDepartment and his appearance should be regularised by the Department andall fee bill raised by Mr. Amit Sharma shall be promptly honoured. (T.S. SIVAGNANAM)CHIEF JUSTICE (SUPRATIM BHATTACHARYA, J.) SNAR(CR)