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आदेश/Order
PER N.K. SAINI, VICE PRESIDENT This is an appeal by the Assessee against the order dt. 20/11/2018 of Ld. CIT(A), Karnal.
2. The Registry has pointed out that there was a delay of 403 days in this appeal. The Assessee moved an application for condonation of delay stating therein as under:
Subject: Condonation of delay in submission of appeal in Suresh Kumar versus lTO (Ward- 2), Kaithal Filed on 26.02.2020 Dear Sir, On 20.11.2018 the order of Commissioner (Appeals), Karnal, was passed in my case for assessment year 2010-2011 Regarding the above order I requested Advocate Anil Mehta to prefer an appeal to the Hon'ble Appellate Tribunal. Unfortunately no appeal was filed in my case and it came to my notice no sooner. As soon It came to my attention I filed a case against the above said advocate in bar council for his attempt to deceive the client and unlawful practice. The copy of complaint and other necessary documents are attached for your reference. Hence I would request to condone the delay of 403 days in submission of the appeal. My affidavit detailing the aforesaid facts and these may kindly be placed before the Hon'ble Appellate Tribunal for condonation of the short delay in submission of the appeal.
3. In support of the above application an Affidavit has been furnished which read as under:
I, Suresh Kumar son of Sh. Jagdish Chand resident of Ward no 3, Cheeka Tehsil Guhla, District Kaithal, Haryana (India) hereby solemnly affirm and declare as under: 1. That I am assessed to income-tax by the Assessing Officer, (Ward-2), Kaithal on file bearing Permanent Account Number BUYPK7076B.
That I preferred an appeal to the Commissioner (Appeals), against the Assessing Officer's order of assessment u/s 143(3)/147 of Income tax act 1961 for the assessment year 2010- 2011
That I received the order of the Commissioner (Appeals) -Karnal on 20.11.2018. Regarding the above order I requested Advocate Anil Mehta to prefer an appeal to the Hon'ble Appellate Tribunal.
Unfortunately no appeal was filed in my case and it came to my notice no sooner. As soon it came to my attention I filed a case against the above said advocate in bar council for his attempt to deceive the client. The copy of complaint and other necessary documents are attached with letter for request for condo nation of delay.
I further declare that the above statement is true and correct to the best of my knowledge and belief. The Assessee also furnished the application dated 18/02/2020 moved to the Bar Council, and the letter dt. 11/06/2020 of the Bar Council calling the comment of the advocate, copy of which is placed on record.
During the course of hearing the Ld. Counsel for the Assessee submitted that the delay occurred due to mistake of the Advocate and the assessee had brought this matter to the knowledge of the Bar Council also by filing the complaint against the then Counsel for the Assessee. It was contended that the delay in filing the appeal was beyond the control of the Assessee and there was no malafide intention, therefore the appeal may be admitted. It was further submitted that the Ld. CIT(A) passed the impugned order exparte without discussing the issue on merit and without providing due and reasonable opportunity of being heard.
4.1 Ld. Counsel for the assessee also furnished an application for admission of the additional evidences. The said application read as under:
Application for admission of Additional Evidence for adjudication.
Respectfully showeth as under:
The abovementioned appeal is fixed for hearing on the 17 of February,2021. The Assessing Officer during the course of assessment proceedings made an addition of Rs. 1,39,45,900/- on account of cash deposits in the bank account. The assessee had all along been stating that he had entered into agreement to sell in respect of agricultural land with various persons. The assessing officer rejected the explanation of the assessee for want of complete evidence. The appeal before the Commissioner was decided ex-parte. The assessee has since collected the evidence in the shape of affidavits, land holdings of the purchasers, etc. The evidence could not be collected earlier since it pertained to very old period. As such it is, therefore, respectfully prayed that the additional evidence may please be admitted and adjudicated upon which goes to the root of the matter.
4.2 The Ld. Counsel for the assessee stated that the assessee could not procure the documents during the course of assessment proceedings which are furnished now as an additional evidence, therefore, these may be admitted as the documents go to the root of the matter. It was requested that the issue may be set aside to the A.O.
4.3 In his rival submissions the Ld. DR strongly supported the order passed by the A.O. and also opposed the condonation of the delay in filing the appeal.
We have considered the submissions of both the parties and perused the material available on the record. In the present case it is noticed that the delay in filing the appeal occurred due to the mistake of the Advocate and the assessee had taken appropriate steps, even a complaint has been filed before the Bar Council to take action against the then Counsel for the assessee who is responsible for the delay in filing the appeal. We therefore considering the peculiar facts of this case and keeping in view the principles of natural justice condone the delay and the appeal is admitted.
5.1 In the present case, the assessee has furnished the additional evidence which could not be procured at the time of assessment proceedings these documents in the form of affidavits for receiving the advance against sale of land and copy of the Jamabandi go to the root of the matter and are necessary to resolve the present controversy. However these documents were not available to the A.O. for his consideration as the assessee could not procure the same during the course of assessment proceedings. We admit these additional evidences since these go to the root of the matter. However, these documents were not available to the A.O. In the instant case, the Ld. CIT(A) passed the impugned order ex-parte and the additional evidences now furnished by the assessee were not available for his consideration, we therefore by keeping in view the peculiar facts of this case deem it appropriate to set aside this matter back to the file of the A.O. in accordance with law after providing due and reasonable opportunity of being heard to the assessee and by considering these new additional evidences now furnished by the assessee.
In the result, appeal of the Assessee is allowed for statistical purposes.
(Order pronounced in the open Court on 17/02/2021)