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Income Tax Appellate Tribunal, SURAT BENCH, SURAT
Before: SHRI SANDEEP GOSAIN & SHRI O.P.MEENA
Page 1 of 5 Shree Uday Chhasia Vs. DCIT, Surat/ITA No.108/SRT/2019 for A.Y. 2014-15 आयकरअपील�यअ�धकरण,सुरत�यायपीठ,सुरत IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER आ.अ.सं./I.T.A No.108/SRT/2019 �नधा�रण वष�/Assessment Year: 2014-15 Shree Uday Chhasia, V Deputy Commissioner of B/503, Regency High Rise, s Income Tax, Circle-1(3), Dumas Road, Piplod. . Surat. [PAN: ACZPZ 1337 M] अपीलाथ� / Appellant ��यथ�/Respondent �नधा�रतीक�ओरसे /Assessee by Shri Mehul Shah – A.R. राज�वक�ओरसे /Revenue by Smt. Anupama Singla – Sr.DR
सुनवाईकीतारीख/ Date of hearing: 09.12.2019 उ�घोषणाक�तार�ख/Pronouncement on: 13.12.2019 आदेश /O R D E R PER SANDEEP GOSAIN, JM: 1. This appeal by the Assessee is directed against the order of Ld.Commissioner of Income Tax(Appeals)-2, Surat dated 04.07.2018 for the assessment year 2014-15.
Grounds raised by the Assessee read as under: “1. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Appeals) has erred in passing ex-parte order without giving sufficient opportunity of being heard. 2. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Appeals) has erred in confirming the action of the assessing officer and not adjudicating grounds of appeal by passing the speaking order after giving the reasons for his decision. 3. On the facts and circumstances of the case as well as law on the subject, the assessing officer has made addition of Rs.2,50,00,000/- on account of alleged disclosure of Income during survey proceedings.
Page 2 of 5 Shree Uday Chhasia Vs. DCIT, Surat/ITA No.108/SRT/2019 for A.Y. 2014-15
It is therefore prayed that the additions made by Assessing Officer and confirmed by CIT(Appeals) may please be deleted.” 3. At the outset, we noticed that the present appeal is barred by the limitation and there a delay of 167 days in filing the present appeal. In this respect, the ld.AR drawn our attention to the application as well as supporting affidavit. The same is reproduced below : “1) The assessee begs to prefer this application for condonation of delay in relation to Appeal filed against the order of the Commissioner of Income Tax (Appeals) which is received by the assessee on 07.07.2018. There is a delay of 167 days in filing the appeal before Honourable Tribunal against the order passed by CIT(A)-II, Surat. 2) The delay was caused owing to the fact that a FIR was lodged against the assessee and he was taken in custody from 07.08.2018. Assessee applied for the bail before Gujarat High Court vide Criminal Misc Application (For Regular Bail) No. 22439 of 2018 and same was granted vide order dated 07.01.2019.The said order is attached herewith for ready reference. The assessee was not aware of CIT(A) passing the order, as the appellate order was not served on him but was received by the Authorized Representative of the assessee and the Authorized Representative also could not contact the assessee. Thereafter, after 07.01.2019 assessee approached CA Mehul Shah to know the status of the case and then assessee was advised to file an appeal before ITAT immediately. 3) The issue in this appeal is that the learned Commissioner of Income Tax (Appeals) has erred in confirming the action of Assessing officer in making addition of Rs. 2,50,00,000/- on account of alleged disclosure of unaccounted income during survey proceedings. 4) The assessee submits that the case is a meritorious one and requires consideration. If the delay is not condoned, it would cause irreparable loss to the applicant. 5) Therefore, in the facts and circumstances of the case, the applicant prays to this Honourable Income Tax Appellate Tribunal: (a) To condone the delay of 167 days in filing the Appeal No.108/SRT/2019 and to extend the time for filing the same inclusive and upto the date of filing the appeal; (b) To grant such other and further relief as deemed fit by Honourable Income Tax Appellate Tribunal.” 4. Considering the reasons mentioned in the application that the delay was caused in filing the appeal owing to the fact that an FIR was lodged against the assessee and he was taken into custody from
Page 3 of 5 Shree Uday Chhasia Vs. DCIT, Surat/ITA No.108/SRT/2019 for A.Y. 2014-15 07.08.2018. The Hon'ble Gujarat High Court had granted bail to the assessee vide order dated 07.01.2019. And in this way the assessee was not aware regarding the passing the order of by the ld.CIT(A) so much so no order was served upon the assessee, rather the order passed by the ld.CIT(A) was received by the ld.AR of the assessee and even the said authorised representative also could not contact the assessee. Thus, all the above narrated facts leads to causing of delay in filing of present appeal.
The assessee has not appeared before the ld.CIT(A) as well as before the ld.AO for hearing. Subsequently, the ld.AO and ld.CIT(A) have given ex-parte orders.
We have heard both the parties and perused the records as well as the relevant provisions of law. We find that the ld.AO and ld.CIT(A) has simply dismissed the appeal of the assessee for non-appearance by the assessee on various dates whereas it was the duty of the learned CIT(A) to pass a speaking order while disposing the appeal ex-parte. The principle audi alteram partem is the basic concept of the natural justice. The expression audi alteram partem implies that a person must be given an opportunity to defend himself which is sin qua non of every civilized society the right to notice, the right to present case and evidence, right to refer advert evidence, right to examine, right to legal representation, disclosure of evidence to party, report of enquiry be shown to the other party and reasoned decision or speaking order is must. We find that in the instant case, though hearings were fixed on various dates but the assessee could not avail the proper hearing because of owing to the fact
Page 4 of 5 Shree Uday Chhasia Vs. DCIT, Surat/ITA No.108/SRT/2019 for A.Y. 2014-15 that an FIR was lodged against the assessee and he was taken into custody from 07.08.2018. The Hon'ble Gujarat High Court had granted bail to the assessee vide order dated 07.01.2019. And in this way the assessee was not aware regarding the passing the order of by the ld.CIT(A). Therefore, we are of the view that the assessee must be given one more opportunity of being heard and to represent his case. Therefore, in exercise of the powers conferred under Rule 28 of Tribunal Rules, we restore back to the file of the learned ld.AO to provide one more opportunity and also thereby to consider all the points so raised by the assessee. Nevertheless to mention, that assessee will co-operate in the appeal proceedings and appear before the learned ld.AO as and when the hearings fixed by the learned ld.AO. We make it clear that non-attendance will of the assessee before ld.AO will entail confirmation of the impugned addition made by the AO. The assessee will file necessary evidences on which he wants to rely upon.
In the result, appeal filed by the Assessee is allowed for statistical purpose.
Order pronounced in the open court on 13-12-2019.
Sd/- Sd/- (O.P.MEENA) (SANDEEP GOSAIN) (लेखा सद�यतथा/ACCOUNTANT MEMBER) (�याियक सद�यकेसम� /JUDICIAL MEMBER) सुरत/ Surat, �दनांक Dated: 13th December, 2019/S.Gangadhara Rao, Sr.PS Copy of order sent to- Assessee/AO/Pr. CIT/ CIT (A)/ ITAT (DR)/Guard file of ITAT. By order / / TRUE COPY / / Assistant Registrar, Surat
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