RAKHI ANANT SAWANT,MUMBAI vs. ACIT-CIR 16(1)(5), MUMBAI

However, on the other hand, the Ld. D.R. for the Revenue opposed the application for condonation of delay on the ground that the late filing of appeals in this case is apparently malafide due to callous attitude of the assessee and prayed for dismissal of the application.

Keeping in view the aforesaid contentions made by the assessee supported with an affidavit that due to sudden demise of two of her counsels due to Covid 19 appeals could not be filed within limitation and that due to onslaught of pandemic Hon’ble Supreme Court in suo-moto writ petition (Civil) No.3 of 2020 dated 08th March 2021 extended the limitation of filing appeal/application

Moreover, when the delay in filing the appeal is examined in the light of the impugned order passed by the Ld. CIT(A) which is ex-parte it becomes more pertinent to condone the delay. Hon’ble Supreme Court in case of Land Acquisition Collector vs. MST Katiji & Others 167 ITR 471 (SC) held that “it is on contention of delay that when substantial justice and technical considerations are pitted against each other, the case of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in injustice being done because of a non deliberate delay.” Keeping in view the discussion made in the preceding paras, we are of the considered view that there is sufficient ground to condone the delay in filing the appeal, hence hereby condoned. Both the appeals are ordered to be registered and taken up for disposal on merits.

The assessee by filing the present appeals, sought to set aside the impugned orders even dated 25.11.2019 passed by Commissioner of Income Tax (Appeals), Mumbai [hereinafter referred to as the CIT(A)] qua the assessment years 2013-14 & 2014-15 on the grounds inter-alia that :- ITA No.2911/M/2022 for A.Y. 2013-14 “1. The Learned Commissioner of Income Tax (Appeals )-4, Mumbai [CIT(A)] erroneously confirmed the addition of Rs.9,29,529/- on account of professional fees without appreciating that assessment should have been made on the basis of revised return which was filed before notice was issued u/s 143(2) to the appellant.

Briefly stated facts necessary for consideration and adjudication of the issues for A.Y. 2013-14 at hand are : assessee being an artist claimed her income from house property, loss from business and profession and income from other sources, filed her return of income for A.Y. 2013-14 at Rs.Nil after claiming loss of Rs.5,32,826/-. Thereafter, the assessee filed revised return of income declaring revised total income of Rs.52,72,910/- which was subjected to scrutiny. The assessee filed necessary details, clarification and explanations through her representative. Declining the contentions raised by the assessee the AO proceeded to make addition of Rs.72,51,676/- on account of professional fees, more particularly for non furnishing of any explanation or justification for variation in professional fees received. The AO also made addition on account of difference in cash in hand of Rs.8,53,802/- under section 68 of the Income Tax Act, 1961 (for short ‘the Act’). The AO also made disallowances of expenses inter-alia show production expenses, gym and fitness, cosmetic and surgery expenses etc. to the tune of Rs.2,73,609/-. The AO disallowed 20% of the aforesaid expenditure of Rs.27,36,089/- i.e. Rs.2,73,609/- on adhoc basis. The AO also disallowed depreciation claimed by the assessee on let out office premises to the tune of Rs.2,49,005/-. The AO disallowed interest on gold loan to the tune of Rs.4,01,312/-. The AO also disallowed interest on housing loan to the tune of Rs.13,00,542/-. The AO also made disallowance of Rs.91,061/- under section 14A of the Act. The AO also disallowed

In A.Y. 2014-15 the AO made an addition of Rs.5,42,832/- by way of disallowance on account of depreciation claimed on let out office premises inter-alia that disallowance of interest on gold loan to the tune of Rs.29,129/-; disallowance on interest on housing loan to the tune of Rs.12,92,957/-; disallowance to the tune of Rs.4,447/- under section 14A made addition on account of sundry creditor to the tune of Rs.4,72,000/- to that AO also made addition of Rs.67,416/- on account of wrong claim of audit fees and also made disallowance of Rs.1,25,227/- being the 20% of expenditure of Rs.6,26,134/- claimed by the assessee and thereby framed the assessment under section 143(3) of the Act at Rs.56,98,190/- for A.Y. 2014-15.

The assessee carried the matter before the Ld. CIT(A) by way of filing appeal who has dismissed the appeals filed by the assessee for want of filing any submission as well as for want of prosecution. Feeling aggrieved with the impugned order passed by the Ld. CIT(A) the assessee has come up before the Tribunal by way of filing present appeals.

The Ld. D.R. for the Revenue contended that sufficient opportunities were given to the assessee but she has not preferred to put in appearance.

We have heard the Ld. Authorised Representatives of the parties to the appeal, perused the orders passed by the Ld. Lower Revenue Authorities and documents available on record in the light of the facts and circumstances of the case and law applicable thereto.

At the very outset, it is brought to the notice of the Bench by the Ld. A.R. for the assessee that the impugned orders have been passed by the Ld. CIT(A) at the back of the assessee for which the assessee has not received any notice.

We have perused para 4 of both the appeals wherein it is categorically mentioned by the Ld. CIT(A) that opportunity of hearings were granted to the assessee on 13.11.2018, 13.09.2019, 27.09.2019, 23.10.2019 and 15.11.2019 for A.Y. 2013-14 and on 30.07.2019, 27.09.2019, 23.10.2019 and 11.11.2019 for A.Y. 2014-15 but none appeared on behalf of the assessee nor filed any written submissions.

Perusal of para 4 of both the appeals shows that it is nowhere brought on record by the Ld. CIT(A) as to what was the mode of getting service of assessee affected nor there is any satisfaction of the Ld. CIT(A) if the notices issued by him were duly served upon the assessee.

Keeping in view the fact that proceedings before the Ld. CIT(A) were not even faceless proceedings, in these circumstances, it was not difficult to get the notice served even through dasti. In these circumstances, we are of the considered view that adequate opportunity of being heard has not been given to

Resultantly, both the appeals filed by the assessee are allowed for statistical purposes.