SHRI SANJIT JITENDRANATH BISWAS,VALSAD vs. THE ITO, WARD-8, VAPI

Shri Sanjit J.Biswas Vs. ITO, Ward-8, Vapi/ ITA No.454/SRT/2018 for A.Y. 2011-12 Page 1 of 6

आयकर अपील�य अ�धकरण,सुरत �यायपीठ, सुरत IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER आ.अ.सं./I.T.A.No.454/SRT/2018 �नधा�रण वष�/Assessment Year : 2011-12 Shri Sanjit J.Biswas, Vs. The Income Tax Officer, 49-76, B/h Bhgyoday Hotel, Ward-8, Vapi – 396 191. Balda, Pardi, Dist.-Valsad – 396 001. [PAN: AFRPN 3882 K] अपीलाथ� Appellant ��यथ�/Respondent �नधा�रती क� ओर से /Assessee by Shri Rajesh Upadhyay – Advocate. राज�व क� ओर से /Revenue by Shri P.S.Choudhary –Sr.DR

19.06.2019 सुनवाई की तारीख/ Date of hearing: उ�घोषणा क� तार�ख/Pronouncement on: 15.07.2019 आदेश /O R D E R PER O.P.MEENA, AM: This appeal filed by the Assessee is directed against the order of 1. Learned Commissioner of Income Tax (Appeals), Valsad dated 27.12.2017 for assessment year 2011-12.

The grounds raised by the assessee read as under : 2. “[1]. Lr.CIT[A], Valsad has erred in law and on facts to dismiss appellant’s appeal on the ground that the appellant is not interested in pursuing his appeal. Further he also erred in dismissing appellant’s appeal in absence of the appellant or his A.R. Honourable Tribunal has prayed to direct the CIT[A], Valsad or The ITO, Ward-8, Vapi to allow the appellant at lease on opportunity to represent his cas through A.R.

Shri Sanjit J.Biswas Vs. ITO, Ward-8, Vapi/ ITA No.454/SRT/2018 for A.Y. 2011-12 Page 2 of 6

[2] Lr. CIT[A], Valsad has erred in law and on facts to confirm A.O.’s action u/s 147 and issue of a notice u/s 148 of the Act over looking the fact that Assessment Order passed u/s 143[3] of the Act dtd.24/01/2014 covers all the issues for which 2nd reopening was made by the A.O. [3] Lr. CIT[A], Valsad has erred in law and on facts to confirm A.O.’s assessment u/s 144 of the Act in view of Para-6 of Assessment Order. [4] Lr. CIT[A], Valsad has erred in law and on facts to upheld A.O.’s addition of Rs.84,75,415/- on account of cash deposit of SBI, Pardi and Rs.64,23,832/- on account of undisclosed contract basis ignoring the fact that one view was taken by the A.O. by applying his mind while completing the assessment u/s 143[3] of the Act.” Condonation of Delay:- 3. Facts of the case are that the appellate order of ld.CIT(A) dated 27.12.2017 was received by the assessee on 30.12.2017, accordingly the second appeal before the ITAT was to be filed on or before 28.02.2018. However, the present appeal is filed on 21.06.2018, hence there is delay by 113 days. The assessee has made a request for condonation of delay with an affidavit dated 21.05.2018 wherein it has been deposed that the assessee is engaged in the civil construction work in his individual capacity and managing the whole affairs for which he has to frequently moved and stayed in the different parts of the state/country for most of the days. The assessee was facing financial crisis on account of non- availability of regular business, therefore the ITAT appeal fees was also could not be paid in time. Therefore, these circumstances led to delay in filing of appeal by 113 days which is claimed to be not deliberate or intentional. Accordingly, it was requested that same may kindly be

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condoned as the delay is occurred due to unavoidable circumstances. Before us, the ld.Counsel for the assessee supported the representation of the assessee and requested for condonation of delay.

On the other hand, the ld.Departmental Representative though 4. opposed for the condonation of delay but not serious if the delay is condoned. We have heard the rival submissions and perused the material 5. available on record. After considering the reasons advanced by the assessee for condonation of delay, we are of the view that there is a reasonable cause for non-filing of appeal before the Tribunal in time as the assessee was facing financial crisis on account of non-availability of regular business and was to frequently moved and stayed in the different parts of the state/country for most of the day in search of business. Therefore, we are satisfied with the reasons deposed in the affidavit of the assessee, accordingly delay of 113 days in not filing of the appeal is hereby condoned and the appeal is allowed to proceeded on merit.

Ground No.1 states that the ld.CIT(A) has erred in law and on facts 6. to dismissing the appeal on the ground that the appellant is not interested in pursuing his appeal, further he has also erred in dismissing appellants appeal in absence of the appellant or his Authorised Representative(AR). The ld.Counsel for the assessee submitted that the ld.CIT(A) noted that

Shri Sanjit J.Biswas Vs. ITO, Ward-8, Vapi/ ITA No.454/SRT/2018 for A.Y. 2011-12 Page 4 of 6

the appellant is not interested in pursuing the appeal as requisite explanation and supporting evidences pertaining to the ground of appeal was not filed. The office of ld.CIT(A) has issued notices dated 23.05.2017, 18.11.2017 and 05.12.2017 with the request to the assessee to furnish written submissions or attend before him. However, the assessee has neither attended nor filed any reply, therefore, the ld.CIT(A) observed that due to negligence shown by the appellant, there is nothing to defend against the additions made by the Assessing Officer, accordingly he did not find any substance in the statement of facts filed with memo and accordingly confirmed the additions and passed the ex- parte order. The ld.Counsel submitted that due to pre-occupancy by the assessee the notices could not be received by the AR of the appellant in time, hence no one has attended before the ld.CIT(A). Since the ld.CIT(A) has passed ex-parte order, therefore the assessee may be allowed one more opportunity to represent the case before the ld.CIT(A), hence, may be restore back to the file of the ld.CIT(A) for decision afresh.

The ld.Departmental Representative supported the order of the 7. ld.CIT(A).

Shri Sanjit J.Biswas Vs. ITO, Ward-8, Vapi/ ITA No.454/SRT/2018 for A.Y. 2011-12 Page 5 of 6

We have heard the rival contentions of both the parties. We find 8. that the assessment for the assessment year under consideration has been passed ex-parte under section 144 read with section 147 of the Act by the AO, as the assessee has failed to furnish return of income, in response to notice u/s.148 of the Act. The ld. CIT (A) has issued notices dated 23.05.2017, 18.11.2017 and 05.12.2017 with the request to the assessee to furnish written submissions or attend before him. However, the assessee has neither attended nor filed any reply, therefore, the ld.CIT(A) observed that due to negligence shown by the appellant, there is nothing to defend against the additions made by the Assessing Officer, accordingly he did not find any substance in the statement of facts filed with memo and accordingly confirmed the additions and passed the ex- parte order. The principle of audi alteram partem is the basic concept of natural justice. The expression “audi alteram partem” implies that a person must be given an opportunity to defend himself. This principle is sine qua non of every civilized society. The right to notice, right to present case and evidence, right to rebut adverse evidence, right to cross examination, right to legal representation, disclosure of evidence to party, report of enquiry to be shown to the other party and reasoned decisions or speaking orders are must. We find the guidance for right of hearing, as is laid down by the Hon'ble Supreme Court in the case of Maneka Gandhi v. Union of India, wherein Hon'ble Supreme Court has held that rule of fair hearing is necessary before passing any order. We find that it

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is pre-decision hearing standard of norm of rule of audi alteram partem. We find that in this instant case, the assessee was not given proper hearing. Therefore, we are of the view that the assessee must be given one more opportunity of hearing and to represent his case. Therefore, in exercise of power conferred under Rule 28 of Tribunal Rules, we restore this appeal for the assessment year 2011-12 to the file of the ld. Assessing Officer for allowing proper opportunity of being heard in accordance with law and decision afresh subject to a payment of cost of Rs.10,000/- with Income Tax Department in the interest of justice. The assessee is directed to appear before the ld.CIT(A) on 19.08.2019 at 10.00 AM for hearing through his Counsel or in person. Nevertheless, to mention that the assessee will cooperate in the appeal proceedings and file necessary evidences on which he wants to rely upon.

In the result, appeal of the assessee is allowed for statistical 9. purpose. The order is pronounced by listing the case on the Notice Board 10. under Rule 34(4) of Income Tax Appellate Tribunal Rules, 1963.

Sd/- Sd/- (MAHAVIR PRASAD) (O.P.MEENA) (�याियकसद�यतथा/JUDICIAL MEMBER) (लेखासद�यकेसम� /ACCOUNTANT MEMBER) सुरत/ Surat, �दनांक Dated: 15th July, 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