AZIZ,INDORE vs. INCOME TAX OFFICER-5(3), INDORE

The appeal filed by the assessee for Assessment Year 2017-18, is barred by limitation by 446 days before Ld. CIT(A) and Ld. CIT(A) dismissed the appeal of the assessee on account of delay. Now, the assessee has moved a petition requesting the Bench to condone the delay before Ld. CIT(A). The learned Counsel has explained the delay in filing the appeal before learned CIT (A) stating that during the assessment proceedings, notices were not served on the assessee and the notices were served on the wrong email- Id. However, when the demand notice came to the assessee physically, then assessee came to know about passing the order by the Assessing Officer. Besides, the tax consultant of the assessee was also lazy and did not take care to file the appeal on time before the Ld. CIT(A). Therefore, such delay has resulted, which may be condoned in the interest of justice.

On the other hand, the ld. DR for the Revenue submitted that in this case no "sufficient cause" was shown by the assessee to explain the huge/unreasonable delay in filing of appeal. Rather, this is a clear case of deliberate inaction or negligence on the part of the appellant. Period of delay is a factor to be considered while considering a delay condonation application, since the law assists those that are vigilant with their rights, and not those that sleep thereupon. Since the assessee has not explained the sufficient cause of the delay before the Ld. CIT(A) and therefore appeal of the assessee should be dismissed.

We have heard, both the parties on this preliminary issue and noted that there was a mistake of the tax consultant in filing the appeal before the Ld. CIT(A), besides, the notices were served on the wrong email- Id, however, when the demand notice came to the assessee physically, then assessee came to know about passing the order by the Assessing Officer. On professional advice, we note that the Courts and Tribunals have consistently held that in the matter of condonation of delay, pragmatic and liberal approach should be taken. The Hon'ble Supreme Court also held the same in case of Investment Trust v. Ujagarsingh observing that unless mala fide or negligence writ large, delay should be condoned and appeals should not be rejected on technical ground of delay and they should be ordinarily decided on Page 2 of 4 merits. We note that the Hon'ble Gujarat High Court has also considered this aspect of condonation of delay in case of Gujarat State Fertilizers & Chemicals Ltd. (283 ITR 149) and held that... i. "The position in law is well settled that an assessee should be granted due relief where it is due without standing on technicalities and the revenue must bear the established legal position in mind while dealing with applications seeking condonation of delay. It is necessary that liberal approach is adopted in such a matter so as to ensure that substantive rights are not defeated on the basis of technicalities or limitation. "

Since, we have condoned the delay in filing the appeal before the Ld. CIT(A) and we note that Ld. Counsel for the assessee stated before the Bench that assessee wants to submit some additional documents and evidences before the Assessing Officer, as the order was passed by the Assessing Officer u/s 147, r.w.s. 144 of the Act therefore one more opportunity should be given to the assessee to plead his case before the Assessing Officer.

On the other hand, the Ld. DR for the Revenue did not raise any objection if the matter is restored back to the file of the Assessing Officer.

Considering the above facts, we note that assessee has not given sufficient opportunity of being heard and could not plead his case successfully before the ld. CIT(A). We note that the ld. CIT(A) did not discuss the assessee’s case on merits based on the material available before him hence it is a violation of principle of Page 3 of 4 natural justice. We note that it is settled law that principles of natural justice and fair play require that the affected party is granted sufficient opportunity of being heard to contest his case. Therefore, without delving much deeper into the merits of the case, in the interest of justice, we restore the matter back to the file of assessing officer for de novo adjudication and pass a speaking order after affording sufficient opportunity of being heard to the assessee, who in turn, is also directed to contest his stand forthwith. We hold and direct accordingly. The assessing officer will afford opportunity of being heard to the Assessee before deciding the issue. The Assessee will also be at liberty to let in further evidence to substantiate its case. Therefore, We deem it fit and proper to set aside the order of the ld. CIT(A) and remit the matter back to the file of the assessing officer to adjudicate the issue afresh on merits. For statistical purposes, the appeal of the assessee is treated as allowed.

In the result, the appeal of the assessee is allowed for statistical purposes.