DIMPAL TEJAS NAIK,NA vs. ARIVS.ITO, WARD 2, NAVSARI, NAVSARI

There is also delay in filing the appeal before Ld. CIT(A). Before, Ld. CIT(A), the appeal filed by the assessee is barred by limitation by 1520-Days. The assessee filed Affidavit before the Bench, citing the reasons for delay before Ld. CIT(A). The Ld. Counsel for the assessee submitted that above delay in filing appeal before Ld. CIT(A) was because of the reason that assessee shifted to a new Society in new area in 2015. Therefore, the assessee was unaware about the proceedings going on before the assessing officer. Hence, delay in filing appeal before Ld. CIT(A) may be condoned, in the interest of justice.

On the other hand, the Ld. DR for the revenue opposed the prayer of the Ld. Counsel for the assessee and stated that assessee has failed to explain the sufficient cause to condone such delay.

I have heard, both the parties on this preliminary issue. I note that the assessee submitted an Affidavit and the petition for condonation of delay before the Ld. CIT(A), citing the reasons for delay, however, the Ld. CIT(A) did not consider the petition for delay in right perspective. The Ld. Counsel also pointed out that the assessee had shifted to a new Society in new area in 2015. Therefore, the assessee was unaware about the proceedings going on before the Assessing Officer as the notices of hearing were served on old address, where assessee did not reside. The Ld. Counsel also submitted that there was also mistake of the tax consultant of assessee in filing appeal, therefore the assessee should not be penalized because of the mistake committed by the tax consultant of the assessee. For that, Reliance is also placed on the decision of I.T.A.T., 'C' Bench, Kolkata in the case of M/s. Garg Bros. Pvt. Ltd. & Others vs. DCIT [ITA Nos.2519 to 2521/Kol/2017, order dated 18.04.2018], wherein under similar set of facts and reasons, the Hon'ble Tribunal was pleased to condone the delay of 211 days by holding as under: "3. We have heard both the parties on this preliminary issue. Having regard to the reasons given in the application for condonation of delay, we are of the considered opinion that assessee was under a bona fide belief that the impugned order of Pr. CIT was not appealable before this Tribunal since they were not advised by their Tax Consultants about this legal right. Later on, when a Senior Lawyer advised them to file an appeal, the assessees immediately took steps to file the appeals. Therefore, the delay caused. We note that delay was occurred because of the wrong advice of the Tax Professional for which assessees cannot be penalized. For the ends of justice, we condone the delay and admit the appeal for hearing.

On merit, the ld. Counsel for the assessee assailed the impugned order by contending that the assessee could not represent his case before Ld. CIT(A) and the order being an ex-parte order, stood vitiated on account of violation of principle of natural justice. The assessee wants to submit additional evidences before Assessing Officer, hence matter may be restored back to the file of the Assessing Officer therefore, Ld. Counsel for the assessee contended that in the interest of justice, another opportunity to contest the appeal before the assessing officer may be granted to the assessee.

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.

I have heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld. CIT(A) and other materials brought on record. I note that in the assessee’s case under consideration, the assessment was carried out u/s 144 the Act and the impugned order passed by the ld. CIT(A), is an ex-prate order and non-speaking order, therefore, I do not wish to make any comments on the merits of the grounds raised by the assessee. Considering the above facts, I note that assessee has not given sufficient opportunity of being heard and could not plead his case successfully before the ld. CIT(A). I 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 natural justice. I 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, I 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. Therefore, I 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.