JAIKISAN SAMIRTAI GANWANI,PUNE vs. INCOME TAX OFFICER, WARD-1(3), PUNE, PUNE

These three appeals by the assessee arise out of two separate ex parte orders dated 18-09-2017 & 10-12-2019 passed by the CIT(A)-13, Pune 13 & CIT(A)-10, Pune in relation to the assessment years 2009-10 to 2011-12.

The extant appeals are time barred by 1245 and 2058 days respectively. The assessee has filed the condonation applications along with affidavit of the Chartered Accountant explaining the reasons which led to delay in presenting the appeals before the Tribunal. In support of delay, the assessee relied on the judgment of Hon’ble Bombay High Court in the case of Vijay Vishin Meghani in dt. 19-09-2017 and also the judgment of Hon’ble Supreme Court in Cognizance for Extension of Limitation, In re 438 ITR 296 (SC) read with judgment in Cognizance for Extension of Limitation, In re 432 ITR 206 (SC) dated 08-03-2021 and 421 ITR 314 as part of the delay covers the Covid-19 pandemic period.

I have heard the ld. DR and gone through the relevant material on record. There is no appearance from the side of the assessee despite notice. As such, I am proceeding to dispose of the appeals ex parte qua the assessee.

The moot point is as to whether such a long delay deserves condonation. At this stage, it is relevant to note the judgment of the Hon’ble Bombay High Court in Vijay Vishin Meghani Vs. DCIT & Anr (2017) 398 ITR 250 (Bom) holding that none should be deprived of an adjudication on merits unless it is found that the litigant deliberately delayed the filing of appeal. In that case, delay of 2984 days crept in due to improper legal advice. Relying on Concord of India Ins. Co. Limited VS Nirmala Devi (1979) 118 ITR 507 (SC), the Hon’ble jurisdictional High Court condoned the delay.

In yet another case in Anil Kumar Nehru and Another vs. ACIT (2017) 98 CCH 0469 BomHC, there was a delay of 1662 days in filing the appeal. Such a delay was not condoned by the Hon’ble High Court. In further appeal, condoning the delay, the Hon’ble Supreme Court in Anil Kumar Nehru vs. ACIT (2018) 103 CCH 0231 ISCC, held that : `It is a matter of record that on the identical issue raised by the appellant in respect of earlier assessment, the appeal is pending before the High Court. In these circumstances, the High Court should not have taken such a technical view of dismissing the appeal in the instant case on the ground of delay, when it has to decide the question of law between the parties in any case in respect of earlier assessment year. For this reason we set aside the order of the High Court; condone the delay for filing the appeal and direct to decide the appeal on merits.’

In view of the aforenoted judgments, the delay in filing the appeals is condoned and the appeals are admitted for disposal on merits.

It is seen that the assessments in the captioned assessment years were framed u/s.143(3) r.w.s.147 of the Act determining total income at Rs.9,66,698/- as against declared income of Rs.3,40,410/- and at Rs.18,61,898/- as against the declared income of Rs.4,65,650/.

Similar position prevailed for this assessment year as well. The AO completed the assessment u/s.143(3) r.w.s.147 of the Act determining total income at Rs.36,21,467/- as against Rs.6,76,720/- returned by the assessee.. The ld. CIT(A) passed the ex parte order in the absence of the assessee.

After hearing the ld. DR and considering the entirety of facts and circumstances of the extant assessment years under consideration, I am of the opinion that it would be just and fair if the impugned orders are set-aside and the matters are remitted to the file of the ld. CIT(A) with a direction to decide the appeals afresh as per law after allowing a reasonable opportunity of hearing to the assessee. I order accordingly. Needless to say, the assessee will be at liberty to lead any fresh evidences in support of its case.

In the result, the appeals are allowed for statistical purposes.