TaxTMI 
TaxTMI 
TaxTMI 
2023 (7) TMI 1503
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....with the affidavit. It was also mentioned by the assessee that she was only concentrating with the above issues, resulting into the delay in filing of the present appeal and there was no malafide intention of the assessee for delay. Therefore, it was stated that the aforesaid delay may kindly be condoned and the appeal of the assessee may kindly be decided. 3. Though, the ld. Sr. DR objected to condone the delay and submitted his written submissions as under :- Sub:- Appeal filed under section 253 by the assessee in the case of Shri. Mickey Shrivastava for the A.Y. 2012-13 ITA 122/RPR/2019 with reference to form no 36 filed on 31-05-2019- request regarding: - 1. This is an appeal filed before ITAT on 31-05-2019 by the assessee against adverse appeal order of CIT appeal dated 02-06-2017. The delay in filing of form no 36 is more than 668 days. The assessee has filed two application, with different reasons on 31-05-2019 and thereafter again on 30-12-2022 for condonation of delay. He has also filed an application for raising additional ground on 26-12-2022. 2. It is first hearing and no adjournment found on records by either side. 3. The assessee paid Rs. Nil /- again....
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....ation, with different reasons on 31-05-2019(04 of Paper book) and thereafter again on 30-12-2022(Page-11 of paper book) for condonation of delay. 2. The application dated 31-05-2019; the assessee stated there is some family problem and unavoidable circumstances but has not mentioned death of her mother in the original application. He enclosed some evidences, not related with the reasons stated in his letter. The reasons explained in the matter is not matching with the evidences enclosed by the assessee. 3. The application of condonation of delay is under consideration hence, filling of fresh application on 30-12-2022 is bad and law and procedure and not maintainable. 4. MMI Narayan, Raipur dated NIL vide certificate no 2505(Page-02) and confirm admission from 05-01-2019 and death of assessee mother, Smt. Rajbala Shrivastav on 12-01-2019. Death certificate issued by Municipal authority(Page-3) confirm the date of death of his mother. The due date of filing form no.36 was 02-08-2017 and Smt. Rajbala expired on 12-09-2019. There is gape of more than 500 days and is enough to return back to normal life and also to attend legal issue. 5. The abnormal delay without a reasonab....
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....sprudence and working of the court. It will invite several litigations in the territory of Hon'ble court. 9. The assessee presumed that delay in filling appeal is condoned and his appeal is admitted by the Hon'ble ITAT. The attitude of the assessee is not fair and has interfered in freedom of judiciary. Filing additional ground of appeal, before disposal of condonation of delay application and also admittance of his appeal by the Hon'ble court, confirms that attitude of the assessee. 10. The assessee has taken additional ground of appeal and challenged the jurisdiction and notice, with a motive to prevent the court to adjudicate the merit of the case. It is to put on records that the assessee has not attended appellate proceedings and order was against the assessee. Additional ground of appeal never been raised before the AO and the CIT appeal. The motive of the assessee can also be verified from Para- 3 & 4 of AO orders, where he has violated various provisions of section XVII B by not deducting and depositing TDS and filing his TDS ITR, his statutory liability, under the Act. The assessee frustrated with no merit in his explanation, adverse AO and appeal order, he tried to ....
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....aterial Handling Charges charges paid to various individual loaders. That CIT (A) could not appreciate the facts and erred in disallowing appeal on the basis of Assessment order passed by ACIT Circle 3(1) Raipur. As per principle of natural justice, opportunity of being heard not provided to the appellant. Prayed for one opportunity. 4. That the learned Assessing Officer further erred in charging interest u/s 234A, 234B and 234C at Rs. 8,50,565/- which is unjustified as the appellant never knew that above additions and disallowances will be made. 5. That the appellant craves leave to add, alter or modify the ground of appeal any time before or at the time of hearing of the appeal. 8. Further the assessee has filed additional ground vide an application dated 26.12.2022, which reads as under :- The assessee wants to raise 'additional ground' of appeal, which is as under, may kindly be admitted for your kind judicious consideration: Additional Gr.No.1 "1. On the facts and circumstances of the case and in law, notice issued u/s 143(2) by ITO-2(4), Raipur on 23-9-13, who was not having pecuniary as well as territorial jurisdiction to issue such statutory not....
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....tiny and on being asked by the AO, the assessee filed his written submissions along with books of accounts, which was test checked by the AO. During the course of hearing the AO found that the assessee has shown the turnover at Rs. 68,19,82,059/- and GP at Rs. 10,66,20,209/- which comes to Rs. 15.63%. The net profit has been shown at Rs. 40,63,899/- which comes to 0.60%. Further the AO found that in the immediately preceding year, the assessee has shown GP at 25.55% and NP at 0.83% and both GP & NP ration is decreased as compared to that of immediate preceding year. Accordingly, the AO completed the assessment holding hat the assessee could not furnish the details to verify as to whether the assessee has followed the sub-section 5 of section 1954C of the Act or nor. Thus, the AO made addition u/s. 40(a)(ia) of the Act. Further the AO made addition on account of travelling expenses and loading and unloading charges to the extent of 10% of the total expenses claimed by the assessee. 13. Against the above order of AO, the assessee preferred appeal before the ld. CIT (A) and the ld. CIT (A) dismissed the appeal of the assessee. 14. Now, the assessee is in further ....
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....o Rs. 20 lacs Above Rs. 20 lacs Upto Rs. 30 lacs Above Rs. 30 lacs Noncorporate returns Upto Rs. 15 lacs Above Rs. 15 lacs Upto Rs. 20 lacsq Above Rs. 20 lacs Metro charges for the purpose of above instructions shall be Ahmedabad, Bangalore, Chennai, Delhi, Kolkata, Hyderabad, Mumbai and Pune. The above instructions are issued in supersession of the earlier instructions and shall be applicable with effect from 1-4-2011. 16. Further, the ld. AR relied on the CBDT Instruction No. 6/2011, dated 08.04.2011, wherein the Board has instructed the CCIT/DGIT to adjust the limits by an amount upto Rs. 5 lakhs to ensure that the workload is equitably distributed amongst the Assessing Officers after recording reasons in this regard. The said Instruction No. 6/2011 is as under :- INSTRUCTION NO. 6/2011 [F.NO.187/12/2010-ITA-I], ______________________________________________ SECTION 119 OF THE INCOME - TAX ACT, 1961 - CENTRAL BOARD OF DIRECT TAXES - INSTRUCTIONS TO SUBORDINATE AUTHORITIES INSTRUCTIONS - REGARDING INCOME LIMITS FOR ASSIGNING CASES TO DEPUTY COMMISSIONERS/ASSISTANT COMMISSIONERS/ITOS INSTRUCTIO....
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....otice u/s. 143(2) of the Act itself was invalid, the assessment order u/s. 143(3) of the Act, dated 23.09.2013, is illegal, nonest, bad in law, and deserves to be quashed. 20. On the contrary, ld.Sr.DR vehemently supported the order of the authorities below and submitted that the assessee was non-cooperative before the ld. CIT(A). The assessee has taken additional ground of appeal and challenged the jurisdiction and notice, with a motive to prevent the court to adjudicate the merit of the case. It is to put on records that the assessee has not attended at the appellate proceedings and order was against the assessee. Additional ground of appeal never been raised before the AO and the CIT(A). The motive of the assessee can also be verified from Para- 3 & 4 of AO orders, where he has violated various provisions of section XVII B by not deducting and depositing TDS and filing his TDS ITR, his statutory liability, under the Act. Motive of availing justice, is rights of the assessee and is universally accepted, but motive to frustrate the legislation by any hooks and crooks cannot be admitted as bonfide rights or intention. This type of tendency of the assessee may be opposed and reject....
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....h a notice under sub-section (1) of Section 142 or sub-section (2) of Section 143. In sum and substance, the obligation cast upon an assessee to call in question the jurisdiction of the A.O as per the mandate of sub-section (3) of Section 124 is confined to a case where the assessee objects to the assumption of territorial jurisdiction by the A.O, and not otherwise. Our aforesaid view is fortified by the judgment of the Hon'ble High Court of Bombay in the case of Peter Vaz Vs. CIT, Tax Shri Sudhir Kumar Agrawal, Durg Vs. ITO, Ward-2(2), Bhilai ITA No. 158/RPR/2017 Appeal Nos. 19 to 30 of 2017, dated 05.04.2021 and that of the Hon'ble High Court of Gujarat in the case of CIT Vs. Ramesh D Patel (2014) 362 ITR 492 (Guj.). In the aforesaid cases the Hon'ble High Courts have held that as Section 124 of the Act pertains to territorial jurisdiction vested with an AO under sub-section (1) or sub-section (2) of Section 120, therefore, the provisions of subsection (3) of Section 124 which places an embargo on an assessee to raise an objection as regards the validity of the jurisdiction of an A.O would get triggered only in a case where the dispute of the assessee is wit....
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....ued by the ITO-2(4), Raipur. Though, subsequently the case was transferred to DCIT-2(4), Raipur, however, the jurisdiction assumed by the ITO-2(4), Raipur, who has issued notice u/s. 143(2) of the Act was not in accordance with the CBDT Instruction No. 01/2011, dated 31.01.2011 and 06/2011, dated 08.04.2011. Therefore, the notice issued u/s. 143(2) of the Act was invalid in terms of non-following the binding instructions issued by the CBDT, consequently, the framing of assessment on the basis of such invalid notice was also void ab initio and needs to be struck down. This issue has already been settled by the coordinate bench of the Tribunal in the case of Mata Road Carriers, passed in ITA No. 79/RPR/2016, vide order dated 10.07.2023, wherein the Tribunal following various judicial pronouncements, in para 18 has held that the Instructions/Circulars are binding on the revenue authorities. Further, the Tribunal in para 19 has quashed the assessment framed u/s. 143(3) of the Act upon a notice issued u/s. 143(2) of the Act by a non-jurisdictional officer. The relevant observations of the Tribunal are as under :- 19. The coordinate bench of the Tribunal under the similar fac....