DEEPAK ARUNBHAI RAITHATHA ,RAJKOT vs. ITO WARD 1(1)(1), RAJKOT , RAJKOT

The ld. Counsel for the assessee submitted that in the affidavit for condonation of delay, the assessee has explained the sufficient cause to condone the delay and therefore in the interest of justice, delay should be condoned.

On the other hand, ld. D.R. for the Revenue opposed the prayer of the assessee for condonation of delay.

I have heard both the parties and perused the materials available on record. I note that there was a mistake on the part of the advocate of the assessee and because of the mistake of the advocate of the assessee, the assessee should not be penalized. For this 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. 7. On professional advice, I 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 malafide 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 merits. I note that 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..."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. " 8. I note that sufficient cause and reasons for delay in both the appeals, that is, in ITA No. 512/Rjt/2026 and in ITA No. 510/Rjt/2026, are similar and identical. I have gone through both the petitions for condonation of delay and noted that there was a mistake on the part of the advocate of the assessee, therefore, these two appeals could not be filed, on time, before the Tribunal. In the case of Concord of India Insurance Co. Ltd. vs Nirmala Devi and Ors (1979) 3 SCR 694 (SC), it was held that advice given by the members of the legal profession may sometimes be wrong even as pronouncement of question of law by Courts are sometimes wrong. An amount of latitude is expected in such cases for, to err is human and lay men, as litigants are, may legitimately lean on expert counsel in legal as in other departments. The Court must of course see whether in such cases there is any taint of mala fides or element of recklessness. If neither is present, legal advice honestly sought and actually given must be treated as sufficient cause for condoning the delay. Collector Land Acquisition, Anantnag vs Mst. Katiji & Ors. (1987) 167 ITR 471 wherein it was held that "the expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice - that being the life -purpose of the existence of the institution of courts. In the case of Mool Chandra vs. Union of India (Civil appeal No. 8435, 8436 of 2024 dated 05-08- 2024), it was held that it is not the length of delay that would be required to be considered while examining the plea for condonation of delay, it is the cause for delay which has been propounded will have to be examined. If the cause for delay would fall within the four corners of "sufficient cause", irrespective of the length of delay same deserves to be condoned. 9. I note that the reasons given in the both affidavits for condonation of delay were convincing and these reasons would constitute reasonable and sufficient cause for the delay in filing these appeals. Having heard both the parties and after having gone through the affidavit as well the delay condonation, application, I am of the considered opinion that in the interest of justice, the delay deserves to be condoned. I, accordingly, condone the delay in both appeals.

On the other hand, ld. D.R. for the Revenue does not raise any objection if the matter is restored to the file of the assessing officer (A.O.) for fresh adjudication.

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 147/ 143(3)of the Act and the impugned orders passed by the ld. CIT(A), are ex-parte orders and non- speaking orders, 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. I 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, I deem it fit and proper to set aside the order of the ld. CIT(A) and remit both the matters back to the file of the assessing officer to adjudicate the issue afresh on merits. For statistical purposes, the appeals of the assessee are treated as allowed.

In the result, both the appeals of the assessee are allowed for statistical purposes.