K & P ENTERPRISES,BANDRA MUMBAI vs. DCIT 22(1), PIRAMAL CHAMBER,MUMBAI
IN THE INCOME-TAX APPELLATE TRIBUNAL“E” BENCH,
MUMBAI
BEFORE SHRI SAKTIJIT DEY, VICE PRESIDENT
&
SHRI PRABHASH SHANKAR, ACCOUNTANT MEMBER
K & P Enterprises
CW
8012,
Bharat
Diamond
Bourse,
Bandra
Kurla
Complex,
Bandra
(East),
Mumbai
–
400051,
Maharashtra v/s.
बनाम
Deputy
Commissioner of Income Tax, Ward – 22(1),
Piramal Chamber, Mumbai
– 400051, Maharashtra
स्थायी लेखा सं./जीआइआर सं./PAN/GIR No: AADFK3421G
Appellant/अपीलार्थी
..
Respondent/प्रतिवादी
Appellant by :
Shri Bhupendra Shah, AR
Respondent by :
Shri Hemanshu Joshi (Sr. DR)
Date of Hearing
15.07.2025
Date of Pronouncement
12.08.2025
आदेश / O R D E R
PER PRABHASH SHANKAR [A.M.] :-
The present appeal is filed by the Assessee against the order passed by the Learned Commissioner of Income-tax, Appeal,
ADDL/JCIT(A)-1, Chandigarh [hereinafter referred to as “CIT(A)”]
pertaining to assessment order passed u/s. 143(3) r.w.s. 147 of the Income-tax Act, 1961 [hereinafter referred to as “Act”] dated 22.02.2016
for the Assessment Year [A.Y.] 2010-11. P a g e | 2
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K & P Enterprises
The grounds of appeal are as under: 1. In the facts and the circumstances of the case and in law, the learned A.O. erred in passing the reassessment order u/s 143(3) r.w.s 147 which is bad in law a. merely on the basis of information received from the DG (Inv), Mumbai who has conducted search operation on Shri Bhanwarlal Jain Group and on the basis of borrowed satisfaction b. merely on the basis of suspicion, surmises and conjectures and without any material on record c. Relying on third party statements and without corroborating evidence d. without providing the statements recorded on the basis of which the additions are made and without giving the appellant an opportunity of cross examination e. Without verification of the details submitted by the Appellant f. approval granted in mechanical way 2. In the facts and circumstances of the case and in law, the Learned AO erred in disallowing purchases amounting to Rs. 11,86,489/-being 100% of purchases made from Daksh Diamonds thereby allegedly treating the same as bogus a. Without appreciating the submissions made by the Appellant b. Without appreciating the fact that reply to notices u/s 133(6) issued by the AO was submitted by the Daksh Diamonds confirming the balances c. Without issuing summons u/s 131 d. Without granting cross examination e. Wrongly relying upon 3rd party statements f. without establishing Cash Trail g. Without any name of the Appellant appearing in the statements recorded of the third parties. h. Without rejecting books of accounts i. Similar additions are deleted by the Juri ictional Mumbai ITAT in many other cases 3. In the facts and circumstances of the case and in law, the leaned AO charged interest u/s 234A, B, C and D and initiating penalty u/s 271(1)(c). 4. In the facts and circumstances of the case and in law, the leaned CIT (A) erred in dismissing the appeal thereby rejecting the petition of condonation by overlooking all the grounds of appeal on merits and legal submissions made and also without granting an opportunity of personal hearing thereby violating principles of natural justice. [B] Relief Prayed:
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K & P Enterprises
The appellant therefore prays Your Honour;
1) To quash the reassessment proceedings u/s 147. 2) To delete the disallowance of Rs. 11,86,489/- allegedly treated as bogus purchase.
3) To delete the interest charged u/s 234A, B, C and D and initiation of penalty u/s 271(1)(c).
3. According to the ld.CIT(A), the appeal against the assessment order under section 143(3)/147 of the Act dated 22.02.2016 shown to be served on 21.03.2016 has been filed on 27.03.2018. This shows that the delay in filing the appeal as per the provisions of section 249(2) of the Act was 705 days. On perusal of Form No. 35, it was observed that regarding delay in filing the appeal, the appellant has submitted as under:-
“With due respect with reference to above subject, we beg to state that we have filed appeal manually in time limit of 30 days and after that by mistake somehow we overlooked the new amendment of filing e- appeal. Sir it was a pure human error and there is no malafide intention.”
3.1 In view of the above discussion and legal position, the delay of 705 days in filing of appeal in this case was not condoned as no “sufficient cause” has been shown u/s. 249(3) of the Act for the appellant's failure to file the appeal within the prescribed period of limitation us. 249(2) of the Act r.w.s. 5 of Limitation Act and hence the appeal sought to be instituted belatedly was dismissed in limine.
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K & P Enterprises
We have carefully considered the above facts and find that the ld.CIT(A) has treated the appeal invalid on account of substantial delay without considering the fact stated by the assessee that original appeal was filed manually within the prescribed time limit. The ld.CIT(A) has not given due consideration of such a fact which has not been disputed by him. Moreover, he appears to have drawn adverse inference and dismissed the appeal for delay taking into account the Statement of Fact but without giving any opportunity to the assessee to adduce reasons. Thus, he has grossly violated the principles of natural justice in dismissing the appeal on one-sided observations only. Undoubtedly, there is considerable delay but the assessee might have explanation to demonstrate ‘sufficient cause’ for the delay which the ld.CIT(A) has completely denied. 4.1 Opportunity needed to be given to the assessee for explaining the delay more so in the light of the fact that the assessee has claimed to have filed appeal within prescribed time albeit manually. There are catena of decisions of various courts of law where even compliance to this extent by the assessee has been considered to be a ground for condonation of delay. We find that that newly introduced system of e- filing of appeals before CIT(A) was introduced w.e.f. 01.03.2016 vide Rule 45 of the Income Tax Rules,1962 while assessee filed appeal with P a g e | 5 A.Y. 2010-11
K & P Enterprises earlier. Thus, it can be seen that it was an initial period of introduction of new system of filing of appeal electronically. However, the assessee filed original appeal in time u/s 249(2) of the Act but the same was filed manually. In our considered view, tax-payers are bound to follow procedures prescribed by authorities in fulfilling their obligations under the Act. But at the same time, procedures are meant to advance justice and not to stifle the same. The ld.CIT(A) dismissed the appeal and did not decide any issue raised by the assessee on merits. Under these facts and circumstances of the case, we are of the considered view that liberal approach is required to be taken to advance justice. When technicalities are pitted against justice, the courts will lean towards advancement of justice. We find that similar issue has been deliberated in various decisions of the coordinate bench of ITAT, Mumbai and decided in favour of the appellants. To cite a few i.e All India Federation Of Tax
... vs Income Tax Officer (E) 1(2), Mumbai on 4 May, 2018 in ITA No.7134/Mum/2017,Estate of Ramniklal Rajmal Mehta vs
DCIT in ITA Nos.628 to 632/Mum/2021. 5. Thus, respectfully following the above cited orders and taking into account all the relevant facts of the case, we consider it appropriate to remand all the issues involved in the instant appeal to the file of the ld.CIT(A) to adjudicate on merits in accordance with law. The assessee is P a g e | 6
A.Y. 2010-11
K & P Enterprises directed as well given liberty to e-file its appeal before the ld. CIT(A) within 10 days of receipt of this order. In case, the directions are followed then in that eventuality, the delay in e-filing the appeal shall stand condoned. The ld.CIT(A) is directed to admit and adjudicate the issues raised by the assessee in its appeal on merits in accordance with law after providing opportunity of heard to the assessee.
6. In the result, the appeal is allowed for statistical purposes.
Order pronounced in the open court on 12.08.2025. SAKTIJIT DEY
PRABHASH SHANKAR
(उपाध्यक्ष/ VICE PRESIDENT)
(लेखाकार सदस्य/ACCOUNTANT MEMBER)
]
Place: म ुंबई/Mumbai
ददनाुंक /Date 12.08.2025
Lubhna Shaikh / Steno
आदेश की प्रतितलति अग्रेतिि/Copy of the Order forwarded to :
1. अपीलार्थी / The Appellant
2. प्रत्यर्थी / The Respondent.
3. आयकर आयुक्त / CIT
4. विभागीय प्रविविवि, आयकर अपीलीय अविकरण DR, ITAT,
Mumbai
P a g e | 7
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K & P Enterprises
गार्ड फाईल / Guard file.
सत्यावपि प्रवि ////
आदेशानुसार/ BY ORDER,
उि/सहायक िंजीकार (Dy./Asstt.