Loading judgment…
Facts
The assessee's appeal before the CIT(A) was dismissed due to a significant delay and failure to appear. The delay was attributed to a dispute between partners, leading to non-service of notices and lack of awareness of assessment proceedings. The assessee also failed to appear before the NFAC, leading to an ex-parte order.
Held
The Tribunal held that the delay in filing the appeal before the CIT(A) was to be condoned due to a dispute between the partners and the resulting ex-parte assessment. The CIT(A) was directed to admit additional evidence and decide the appeal on merits after providing an opportunity of being heard.
Key Issues
Whether the delay in filing the appeal before the CIT(A) should be condoned considering the dispute between partners, and whether the CIT(A) should have admitted additional evidence without granting an opportunity of being heard.
Sections Cited
139, 44AB
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, DELHI
(A.Y. 2017-18) Shiva Trading Vs. ITO Flat No. 652, 2nd Floor, Ward-36(4) Creative Heights, Sector- New Delhi 29, Rohini, New Delhi PAN: ACQFS1603K Appellant Respondent Assessee by Advocate Paritosh Jain Revenue by Sh. Sahil Kumar Bansal, Sr. DR Date of Hearing 08/05/2025 Date of Pronouncement 14/05/2025 ORDER
PER YOGESH KUMAR, U.S. JM:
The present appeal is filed by the Assessee against the order of the Commissioner of Income Tax (Appeal)/National Faceless Appeal Centre (Ld. CIT(A) for short) dated 29/01/2024 for the Assessment Year 2017-18.
The grounds of appeal are as under:-
“1. On the facts and circumstances of the case, order passed by National Faceless Appeal Centre (NFAC) is bad both in the eye of law and on facts.
2.(i) On the facts and circumstances of the case, NFAC has erred, both of facts and in law, in passing the order without giving assessee an appropriate and adequate opportunity of being heard in violation of the principle of natural justice.
(ii) That the reason for non appearance before the NFAC was beyond the control of the assessee.
3. On the facts and circumstances of the case, NFAC has erred both on facts and in law in passing the order without admitting the additional evidences furnished by the assessee under Rule 46A of the Income Tax Rules.
4. On the facts and circumstances of the case, NFAC has erred, both of facts and in law, in confirming the addition of an amount of Rs.2,00,89,766/-, made by the Assessing Officer on account of bank deposits.
5. The applicant craves leave to add, amend or alter any of the grounds of appeal.”
There is a delay of 173 days in filing the present Appeal. The Assessee filed an application for condonation of delay contending that the order impugned has been passed filed by the NFAC without giving opportunity of being heard to the Assessee and the Assessee came to know regarding passing of the order impugned only in the month of July, whenthe new Accountant logged-in the Portal for filing the Income Tax Return of the Assessee. Immediately, after coming to know regarding passing of the order the Assessee filed the present Appeal, therefore, submitted that the delay in filling the Appeal was not intended. Thus, sought for condoning the delay in filing the present Appeal. In support of the application for condonation of delay, an affidavit sworn by RamakantaRaut who is the partner of the Assesseealso filed.
Heard both the parties and perused the affidavit filed in support of the application for condonation of delay. For the reason stated in the application for condonation of delay and the affidavit filed by the partner of the Assessee, we are of the opinion that there was sufficient cause for the Assessee to file the present appeal belatedly, accordingly, the delay of 173 days in filing the present appeal is hereby condoned.
The Ld. Counsel for the Assessee submitted that the order impugned has been passed by the NFAC without giving opportunity of being heard to the Assessee and the order impugned has been passed in violation of principals of natural justice. The Ld. Counsel further submitted that the NFAC has also not considered the additional evidences furnished by the Assessee under Rule 46A of the Income Tax Rules, thereby erroneously dismissed the Appeal. Thus, the Assessee's Representative sought for allowing the Appeal.
We have heard both the parties and perused the material available on record. As could be seen from the record, both the assessment order as well as order of the Ld. CIT(A) were passed ex- parte. There was a delay of 1000 days on filing the appeal before the Ld. CIT(A). It was the case of the Assessee that the books of accounts of the Assessee firm were duly tax audited u/s 44AB of the Act, however, upon conclusion of the assessment year, a dispute arose between the partners, as a result of which one partner Ms.
SonakshiGargwhose residential premises were shown as principal place of business of firm and who was not at speaking terms with other partner Sh. RamakantaRaut. Though the books of account of the Assessee firm were tax audited, due to the hostile situation between the partners, though there was no profit in the Firm rather there was a loss, ITR for the year under consideration could not be furnished by the Assessee within the time prescribed u/s 139 of the Act. Further, all the notices issued by the A.O.claimed to be not be served on appellant Firm and appellant was not aware of either assessment proceedings and passing of the assessment order. It can be seen from the order of the Ld. CIT(A), since the Assessee has not participated in the assessment proceedings, the Assessee filed an application under Rule 46A of Income tax Rules by producing additional evidence. However, the Ld. CIT(A) has not admitted the additional evidence and dismissed the appeal on the ground that the Assessee has not furnished any cash book and observing on ‘gross negligence’ on behalf of the Assessee, before the A.O. dismissed the said application. In our considered view, considering the fact that there was a dispute between the partners which ultimately resulted in passing the ex-parte assessment order and also there was delay in filing the appeal before the Ld. CIT(A) for the reasons mentioned above, the Ld. CIT(A) should have condoned the delay of 1000 days and decided the appeal on merits after admitting the additional evidence produced by the Assessee. Thus, the delay of 1000 days infiling the appeal before the Ld. CIT(A) is hereby condoned and the Ld. CIT(A) is directed to admit the additional evidence and decide the issue involved in the appeal on its merits after providing an opportunity of being heard to the Assessee.
In the result, the Appeal of the Assessee is partly allowed for statistical purpose.