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Income Tax Appellate Tribunal, CHANDIGARH
Before: SH. SANJAY GARG
आदेश/ORDER The present appeal has been preferred by the assessee against the order dated 20.02.2019 of the Commissioner of Income Tax (Appeals)-1, Chandigarh pertaining to 2010-11 assessment year. The assessee in this appeal has taken following grounds of appeal :
1. That the order of Ld. CIT(A) is against the law and facts of the case.
2. That the Ld. CIT(A) has grossly erred in dismissing the appeal of the assessee 'in limine 'that too without condoning the small unintentional delay of 4 days.
3. That the Ld. CIT(A) has grossly erred in dismissing the appeal of the assessee without considering that the manual Form 35 uploaded in attachments along with online appeal on e-portal of Income Tax signed on dated 19/20.1.2018, ITA-8/CHD/2021 A.Y. 2010-11 Page 2 of 6 appeal fees is paid dated 24.01.2018 and delay if any, is due to the mistake of counsel for which assessee should not suffer.
4. That the Ld. CIT(A), has erred in not allowing the appeal of the assessee, as the order of AO passed u/s 144 r.w.s. 148 was based on illegal Notice u/s 148 that too without fulfilling the mandate of Section 148/147.
5. That the Ld. CIT(A) is not justified while upholding the exparte assessment without appreciating the fact that assessee being a petty civil contractor and the cash deposits of Rs. 7,52,300/- in bank is out of the cash available with the assessee.
6. That the Ld. CIT(A) is not justified while upholding the exparte assessment without appreciating the fact that assessee being a petty civil contractor and out of the cash deposits of Rs. 7,52,300/- in bank, only the profit element of 8% embedded in it, can be taxed u/s 44AD and not the entire cash deposits u/s 68 as assessee is not maintaining any books of accounts.
7. That the Ld. CIT(A) is not justified while upholding the exparte assessment wherein the AO has applied the NP rate of 10% instead of 8% as per section 44AD.
2. There is a delay of 663 days in filing this appeal before this Tribunal. A separate application alongwith affidavit of the appellant has been filed wherein reasons, because of which the assessee was prevented from filing the appeal in time, have been explained. It has been deposed in the affidavit that the assessee had handed over the papers for filing of appeal to his previous counsel namely Shri Kulbir Singh Chauhan and that the assessee was under bonafide belief that the appeal has been filed before the Tribunal. That it has also been deposed in the affidavit that even thereafter the assessee made certain payments on account of fees etc. to the said counsel believing that the counsel is representing in the appeal filed by the assessee before this Tribunal. That, however, the said Shri Kulbir Singh Chauhan, infact got occupied in some personal litigation relating to some land. The dispute became aggravated and ultimately Shri Kulbir Singh Chauhan was ITA-8/CHD/2021 A.Y. 2010-11 Page 3 of 6 murdered on 31.07.2020. That after some time after the death of Shri Kulbir Singh Chauhan, the assessee enquired about the fate of his appeal and came to know that infact the appeal was never filed by his previous counsel as he was severely involved in his personal litigation and other related disputes including criminal cases.
The assessee immediately approached his new counsel and filed the present appeal in the month of February,2021. The ld. counsel for the assessee, therefore, has submitted that under the circumstances, there was no intentional or deliberate inaction on the part of the assessee in delay of filing of the appeal. He, therefore, submitted that the delay in filing the present appeal before this Tribunal may be condoned.
The ld. DR on the other hand has submitted that the impugned order of the CIT(A) was communicated to the assessee in the month of March, 2019 and the appeal has been filed with delay in the month of February, 2021 and that there was a considerable delay of 663 days in filing the present appeal.
I have considered the rival submissions and gone through the record. The assessee has duly explained the reasons for delay in filing the appeal by way of detailed affidavit. Even the assessee has deposed in the affidavit that some fees during the period was also transferred through banking channel by the assessee to his
ITA-8/CHD/2021 A.Y. 2010-11 Page 4 of 6 counsel. That the assessee was under bonafide belief that his counsel Shri Kulbir Singh Chauhan has filed appeal and was representing in the matter on behalf of the assessee. The assessee has further filed details/evidences detail of the personal litigation of Shri Kulbir Singh Chauhan and explained the circumstances ultimately leading to the murder of Shri Kulbir Singh Chauhanon 31.07.2020. The assessee, thereafter, enquired for the status of his appeal and when it came to his knowledge that no appeal was filed, the assessee approached immediately another counsel and filed the present appeal. In my view, the reasons above explained constitute sufficient cause for which assessee was prevented from filing the appeal in time. In view of this, the delay in filing the present appeal is hereby condoned.
Now coming to the impugned order of the CIT(A), the assessee has shown that the ld. CIT(A) has dismissed the appeal of the assessee on the ground of limitation. The ld. counsel for the assessee has further explained that there was only four days delay in filing the appeal before the CIT(A). The assessee has further explained that the assessee had approached his counsel well in time for filing the appeal and that the appeal papers were signed on 20.01.2018 itself. Even the counsel for the assessee deposited the requisite appeal fees on 24.01.2018. However, the appeal was filed online on 27.01.2018. It was due to some lapse on the part of the counsel. The ld. counsel for the assessee has ITA-8/CHD/2021 A.Y. 2010-11 Page 5 of 6 submitted that since the earlier counsel was under bonafide belief that the appeal has been filed within the limitation period, therefore, he did not move any application for condonation of delay which led to dismissal of the appeal by the CIT(A). The ld. counsel for the assessee has submitted that assessee has a fair case on merits and that the delay of four days in filing the appeal which has occurred due to the circumstances as explained above, may be condoned and the matter may be remanded to the file of the CIT(A) for decision on merits.
The ld. DR on the other hand has submitted that since no application for condonation of delay was filed, therefore, the CIT(A) rightly dismissed appeal of the assessee being barred by limitation.
I have considered the rival submissions and gone through the record. There was merely a delay of four days in filing appeal before the CIT(A). The assessee in his affidavit has explained that the appeal papers were signed well in time and even the appeal fees was also deposited, however, the counsel for the assessee inadvertently filed the appeal on 27.01.2018 which led to 4 days’ delay. It has also been contended that the assessee has a fair case on merits. In my view, it will be in the interest of justice if the assessee is given an opportunity to contest his appeal on merits.
ITA-8/CHD/2021 A.Y. 2010-11 Page 6 of 6
In view of this, the delay in filing the appeal before the CIT(A) is ordered to be condoned and the matter is remanded to the file of the CIT(A) with a direction to decide the appeal on merits after giving proper opportunity of hearing to the assessee.
The appeal is treated as allowed for statistical purposes.
Order pronounced on 30.11.2021.