AYUB KHAN,KALABURAGI vs. WARD 1 & TPS, KALABURAGI

The present appeal by the assessee is delayed by 97 days. Along with the appeal, the assessee has filed an application seeking condonation of the Page 1 of 6 delay, which is duly supported by an affidavit of the assessee. During the hearing, the learned Authorised Representative (“learned AR”) submitted that the assessee could not appear before the learned CIT(A) as almost all the notices fixing the hearing were issued on the assessee’s old e-mail address instead of the e-mail address provided for communication in Form No. 35 filed before the learned CIT(A). The learned AR submitted that consequently, the assessee remained completely unaware of the pendency of the appellate proceedings and the disposal of its appeal. It was further submitted that only upon receiving an SMS alert regarding the consequential penalty proceedings, the assessee came to know about the disposal of the appeal by the learned CIT(A), and thereafter, the assessee took necessary steps for filing the present appeal before the Tribunal. Thus, the learned AR submitted that the delay in filing the present appeal was neither deliberate nor intentional and was completely attributed to the circumstances which are beyond the control of the assessee.

We find that the reasons stated by the assessee for seeking condonation of delay fall within the parameters for grant of condonation laid down by the Hon’ble Supreme Court in the case of Collector Land Acquisition, Ananth Nag vs. MST Katiji anothers, reported in 1987 SCR (2) 387. It is well- established that the Rules of procedure are handmaid of justice. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred. In the present case, the assessee did not stand to benefit from the late filing of the present appeal. In view of the above and having perused the affidavit filed by the assessee, we are of the considered view that there exists sufficient cause for not filing a present appeal within the limitation period, and therefore, we condone the delay in filing the appeal by the assessee, and we proceed to decide the appeal.

In this appeal, the assessee has raised the following grounds: - 1. The Order of the learned Commissioner passed under section 250 of the Act is opposed to law, equity, weight of evidence, probabilities and the facts and circumstances in the Appellant’s case. 2. The Appellant denies to be assessed to tax on total income as determined by the learned Assessing Officer of Rs. 1,58,46,466/- as against the declared total income of Rs. 49,900/- on the facts and circumstances of the case. 3. The learned Commissioner of Income-tax (Appeals) failed to appreciate that the learned Assessing Officer, is not justified in making the addition of Rs. 1,58,46,466/- on account unexplained investments under the section 69A of the Act in the facts and circumstances of the case. 4. The learned Commissioner of Income-tax (Appeals) is not justified in upholding the action of the Assessing Officer in invoking section 115BBE in the facts and circumstances of the case. 5. The learned Commissioner of Income-tax (Appeals)is not justified in merely uploading the notices on the Income Tax portal and without serving a single notice by physical means in accordance with the mandate of the Act in the facts and circumstances of the case. 6. Without prejudice, the learned Commissioner of Income-tax (Appeals) ought to have called for the assessment records and appreciated the submissions and various details that was filed before the assessing officer during the course of the assessment and adjudicated the appeal in accordance with law in the facts and circumstances of the case. 7. The learned Commissioner of Income-tax (Appeals) ought to have been appreciated the fact that the assessing officer highlighted the issue of Rs. 1,10,00,000/- only in the order under section 148A(d) of the Act pursuant to the show cause notice under section 148A(b) of the Act and therefore the order under section 148A(d) having been passed without putting the assessee on show cause in so far as Rs. 1,10,00,000/- addition is concerned is bad at law in facts and circumstances of the case. 8. Without prejudice to the right to seek waiver with the Hon’ble CCIT/DG, the appellant denies himself liable to be charged to interest u/s. 234A, 234B of the Act, which under the facts and in the circumstances of the appellant’s case deserves to be cancelled. 9. The Appellant craves leave of this authority to add, alter, delete or substitute any of the grounds urged above. 10. In the view of the above and other grounds that may be urged at the time of the hearing of the appeal, the Appellant prays that the appeal may be allowed in the interest of justice and equity. We have considered the submissions of both sides and perused the 5. material available on record. It is evident that the learned CIT(A) passed the order ex parte due to the assessee's non-compliance with the hearing notices. Now, in the appeal before us, the assessee is duly represented by the learned AR and wishes to pursue the litigation against the addition made by the Assessing Officer. During the hearing, the learned AR submitted that the hearing notices were sent by the learned CIT(A) to the e-mail address, which was different from the e-mail address provided in Form No. 35 for the purpose of communication. In support of its contention, the learned AR placed on record the copies of the e-mail, which were sent to the e-mail address, which is apparently different from the e-mail address provided in Form No. 35, for the purpose of communication.