NIRVANA LEISURE REALTY,MUMBAI vs. CIRCLE 24(1), MUMBAI , MUMBAI

The assessment made by the AO is void & illegal and, therefore, bad in law as the addition have been made on grounds other than the ground for which the case was selected for scrutiny without getting the scope extended by following due process as required by the CBDT Instruction in this regard.

The ld.CIT(A) in passing the order ex-parte erred in confirming the action of the AO of rejecting the books of account and estimating net profit @ 8% of the turnover.

In doing so, he did not appreciate the facts of the case and the ground of appeal raised before him in its proper perspective.

The ld.CIT(A) in passing the order ex parte erred in confirming the action of the AO of making addition u/s 69C of the Act in respect of commission paid of Rs.15860412/-.

In doing so, he did not appreciate the facts of the case and the ground of appeal raised before him in its proper perspective.

At the outset, It is noticed that the appeal is delayed by 124 days. In this regard an application for condonation has been filed as per record stating that that the dealing person did not inform the partners in time regarding disposal of its appeal. As such, the partners were not aware of the fact that the ld.CIT(A) had already dismissed the appeal .Moreover, the partners are not conversant with e-assessment/appeal proceedings conducted in faceless manner. However, as soon as the Consultant came to know of these facts, as per his advise appeal was filed immediately. The delay is stated to be on account of unintentional mistake due to unavoidable and bonafide reasons.

On careful consideration of the submissions of the assessee, we are of the considered opinion that the delay in filing of the present appeal was not intentional but on account of certain unavoidable reasons arising due to the mistake on part of the dealing staff and also due to lack of familiarity with new mode of e-proceedings. Rejection of the request for condonation may cause genuine hardship to the assessee. In this connection, reliance could be placed on the landmark decision of hon'ble Supreme Court which inter alia held in Collector, Land Acquisition v Mst. Katiji And Others- 167 ITR 471 (SC) that “ordinarily, a litigant does not stand to benefit by lodging an appeal late........Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated....Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.... A litigant does not stand to benefit by resorting to delay. In fact, he runs serious risk."Accordingly, in the interest of justice, we condone the delay and proceed to adjudicate the grounds of appeal filed by the assessee.

We find that the appellate order has also been passed in ex- parte manner on account of non-compliance by the assessee and none of the issues raised in the grounds of appeal involved have been adjudicated. Consequently, the ld.CIT(A) did not evaluate the points of consideration so as to give his own decision on objective analysis of all relevant facts and circumstances of the case. However, it is equally important that it is a fundamental duty of the assessee to diligently pursue the appeal and comply with the notices and proceedings initiated by the Revenue authorities. The framework of the Act and the income tax proceedings rely heavily on the cooperation and active participation of the taxpayer. In the present case, despite the issuance of multiple notices under section 250 of the Act by the ld.CIT(A), no response was made or explanation submitted.

Considering the entirety of the facts and the circumstances of the case and in the interest of principles of natural justice and fair play, we consider it appropriate to send the entire matter back to the file of the AO in the light of above discussion, granting one final opportunity to the assessee to advance the arguments and submissions before him, so as to provide details in connection with the merits of the case. Accordingly, in the substantial interest of justice, we set aside the appellate order and restore the entire matter back to the ld.AO for passing the assessment order de novo after allowing adequate opportunity of hearing to the representatives of the assessee who is also directed to attend the assessment proceedings before the AO without fail and cooperate with him in furnishing relevant details etc as sought by him.

In the result, the grounds of appeal and the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 11/11/2025. NARENDER KUMAR CHOUDHRY (न्यायिक सदस्य /JUDICIAL MEMBER) Place: मुंबई/Mumbai दिनांक / Date 11.11.2025 Lubhna Shaikh / Steno PRABHASH SHANKAR (लेखाकार सदस्य/ACCOUNTANT MEMBER) आदेश की प्रतिलिपि अग्रेषित/