JAIKISAN SAMIRTAI GANWANI,PUNE vs. INCOME TAX OFFICER, WARD-1(3), PUNE, PUNE
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Income Tax Appellate Tribunal, SMC BENCH, PUNE
Before: SHRI R.S. SYAL
आदेश / ORDER
PER R.S. SYAL, VP:
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
2 ITA Nos.793, 797 & 798/PUN/2023 Jaikisan Samitrai Ganwani
Hon’ble Bombay High Court in the case of Vijay Vishin Meghani in
ITA No.493/2015, 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
3 ITA Nos.793, 797 & 798/PUN/2023 Jaikisan Samitrai Ganwani
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.
A.Y. 2009-10 & A.Y. 2010-11:
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/.
The ld. CIT(A), in para 1.6 of the impugned order, noted as under :
4 ITA Nos.793, 797 & 798/PUN/2023 Jaikisan Samitrai Ganwani
“I have considered the facts of the case. As stated, before me, the Appellant has not substantiated his Grounds of Appeal raised with his arguments and supporting evidence. Therefore, I confirm the addition of the gross profit of Rs.9,66,698/- for the A.Y. 2009-10 and of Rs.18,61,898/- for the A.Y. 2010-11 made by the learned AO.”
He thus eventually dismissed the appeals of the assessee for the years
under consideration ex parte qua the assessee.
A.Y. 2011-12 :
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.
5 ITA Nos.793, 797 & 798/PUN/2023 Jaikisan Samitrai Ganwani
In the result, the appeals are allowed for statistical purposes.
Order pronounced in the Open Court on 28th July, 2023.
Sd/- (R.S.SYAL) VICE PRESIDENT पुणे Pune; िदनांक Dated : 28th July, 2023 सतीश
आदेश की �ितिलिप अ�ेिषत/Copy of the Order is forwarded to: अपीलाथ� / The Appellant; 1. ��थ� / The Respondent 2. 3. The Pr.CIT concerned 4. DR, ITAT, ‘SMC’ Bench, Pune गाड� फाईल / Guard file. 5.
आदेशानुसार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune
6 ITA Nos.793, 797 & 798/PUN/2023 Jaikisan Samitrai Ganwani
Date 1. Draft dictated on 27-07-2023 Sr.PS 2. Draft placed before author 28-07-2023 Sr.PS 3. Draft proposed & placed before JM the second member 4. Draft discussed/approved by JM Second Member. 5. Approved Draft comes to the Sr.PS Sr.PS/PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order.
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