NAGESH MOTIBAI DESAI,MUMBAI vs. ITO, WARD, 42(1)(3), MUMBAI
IN THE INCOME-TAX APPELLATE TRIBUNAL“H(SMC)”
BENCH, MUMBAI
BEFORE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER
&
SHRI PRABHASH SHANKAR, ACCOUNTANT MEMBER
Nagesh
Motibhai
Desai,
Room No. 9, Ganesh Nagar,
Rawal Pada, Nr. West Exp.
Highway,
Dahisar
East,
Mumbai–400068, Maharashtra v/s.
बनाम
Income Tax Officer, Ward –
42(1)(3), Kautilya Bhavan,
Bandra
Kurla
Complex,
Bandra (East), Mumbai –
400051, Maharashtra
स्थायी लेखा सं./जीआइआर सं./PAN/GIR No: AURPD9744M
Appellant/अपीलाथी
..
Respondent/प्रतिवादी
Appellant by :
Ms. Mona Solanki, CA
Respondent by :
Shri Pravin Salunkhe (Sr. DR)
Date of Hearing
12.08.2025
Date of Pronouncement
13.10.2025
आदेश / O R D E R
PER PRABHASH SHANKAR [A.M.] :-
The present appeal arising from the appellate order dated
30.08.2024 is filed by the assessee against the order passed by the Learned Commissioner of Income-tax (Appeals)/National Faceless
Appeal Centre, Delhi [hereinafter referred to as “CIT(A)”] pertaining to the assessment order passed u/s. 147 r.w.s. 144B of the Income-tax Act,
1961 [hereinafter referred to as “Act”] dated 26.04.2023 for the Assessment Year [A.Y.] 2017-18. P a g e | 2
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Nagesh Motibhai Desai
The grounds of the appeal are as under:- 1. On the Facts and in the circumstances of the case and in law, the ld.CIT(A) has erred in dismissing the appeal that based on that there is no sufficient cause for condoning the delay (141Days) in the institution of appeal by the appellant as no reason has been filed for the delay. Therefore, the case is not being dealt with and examined on merits. 2. On the Facts and in the circumstances of the case and in law, the ld. AO has erred in disallowing Cost of Acquisition amounting to Rs. 89,86,562/- in absence of supporting documents. Requesting Your Honor, to allow the cost of acquisition. 1. All the Grounds of Appeal are without prejudice to each other. Additional grounds of Appeal 1. “On the Facts & Circumstances of the case, the Ld. Assessing Officer-ITO WARD 42(1)(3), hereinafter referred to as the Ld.. A.O. has failed to appreciate that the AO issued reopening Notice beyond period of three years, approval was required. to be taken as per the provisions of amended section 151 of the Act from Principal Chief Commissioner or Principal Director General or Chief Commissioner or Director General however approval is taken from PCIT”. 2. “On the Facts & Circumstances of the case, the Ld. Assessing Officer- ITO WARD 42(1)(3), hereinafter referred to as the ld. A.O. has failed to mention the section under which the Order u/s 148A(d) has been passed i.e the Ld. AO has not specified whether Order has been passed u/s 149(1)(a) or 149(1)(b)”. 3. Brief facts of the case are that the assessee is an Individual in whose case, the AO made addition of Rs. 79,86,562/- disallowing cost of acquisition based in the absence of supporting documents. Being aggrieved, the assessee filed an appeal before the ld. CIT(A) for the said order. There was a delay in filing in appeal of 141 days for which the assessee did not provide any reasons for the same. The appellate authority did not adjudicate the appeal on merits. It is also noticed from the appellate order that the case was fixed for hearing on as many as five
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Nagesh Motibhai Desai times but they did not elicit any response from the assessee. In the light of these facts, the CIT(A) observed that the assessee was negligent and no sufficient cause was attributed for the delay as well. Accordingly, he dismissed the appeal in limine without considering merits of the case.
4. Before us, the ld.AR has filed an affidavit stating the reasons for the delay mainly attributing to non-communication by the Counsel of the assessee regarding receipt of assessment order in time. It is stated that the relationship of the assessee with the counsel is strained and his services have also been discontinued. It is submitted that as soon as the assessment order was conveyed to him, he immediately filed the appeal.
It is requested to condone the delay.
5. We find that the delay in filing of appeal though had been attributed to the Counsel before us, there was no submission made in this regard before the appellate authority. Besides, no reasons have been stated in respect of repeated non-compliance before the ld.CIT(A) during appeal proceedings. The assessee before us has also filed additional ground of appeal not raised before the appellate authority.
6. 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 due to unavoidable and sufficient cause.
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Nagesh Motibhai Desai
Such a bonafide mistake should have been condoned. Moreover, the ld.CIT(A) is also not justified in dismissing the appeal on the ground of delay without affording any opportunity to the assessee to explain it which is against the principles of natural justice and also amounts to taking away a substantive right of 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.” We therefore, condone the delay setting aside the appellate order.
We have duly perused the records from which it is noticed that in this case, the appellate order was passed without proper adjudication
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Nagesh Motibhai Desai on merits of the case as the assessee did not submit relevant documents and evidences in support of the issues involved before the appellate authority. We are of the considered view in the interest of justice and fairplay, the entire matter needs to be properly adjudicated by the ld.CIT(A).As such, we are granting a final opportunity to the assessee to advance his arguments/submissions before the him so as to provide details in connection with the merits of the case and additional evidences, if any to support his contentions. The assessee is also granted liberty to raise any additional ground as well. Accordingly, in the substantial interest of justice, we set aside the appellate order and remand all the issues to the ld.CIT(A) for passing the appellate order afresh after allowing adequate opportunity of hearing to the assessee.
8. In the result, the appeal is allowed for statistical purposes.
Order pronounced in the open court on 13/10/2025. SANDEEP GOSAIN
PRABHASH SHANKAR
(न्यातयक सदस्य /JUDICIAL MEMBER)
(लेखाकार सदस्य/ACCOUNTANT MEMBER)
Place: म ुंबई/Mumbai
दिन ुंक /Date 13.10.2025
Lubhna Shaikh / Steno
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Nagesh Motibhai Desai
आदेश की प्रतितलतप अग्रेतिि/Copy of the Order forwarded to :
1. अपीलार्थी / The Appellant
2. प्रत्यर्थी / The Respondent.
3. आयकर आयुक्त / CIT
4. विभागीय प्रविवनवि, आयकर अपीलीय अविकरण DR, ITAT,
Mumbai
5. गार्ड फाईल / Guard file.
सत्यावपि प्रवि ////
आदेशानुसार/ BY ORDER,
उप/सहायक पंजीकार (Dy./Asstt.