LATE SHRI. KASAM NURMAD KARADIYA,JOGESHWARI, MUMBAI vs. INCOME TAX OFFICER, WARD 41(4)(2), MUMBAI, MUMBAI

The Hon’ble CIT(A) has erred in treating an amount of Rs. 21,642/- being agricultural income as income from other sources without appreciating the facts of the case as well as law.

The Hon’ble CIT(A) has erred in treating an amount of Rs. 25,688/- being interest income as income from other sources without appreciating the facts of the case as well as law.

At the outset, we noticed that the present appeal is delayed by 599 days. In this regard, as per delay condonation application, it is P a g e | 3 A.Y. 2012-13 Late Shri Kasam Nurmad Karadiya submitted that assessment was completed vide an order dated 06.12.2017 passed u/s 143(3) r.w.s 147 of the Act, against which the assessee filed an appeal on 01.01.2018 before the ld. CIT(A), who passedex-parte appellate order dated 05.06.2023. It is submitted that appellate proceedings could not be attended on account of the unfortunate sad demise of the assessee on 27.02.2020 resulting into delay even in filing of appeal before ITAT. The delay was mainly on account of the facts that none of the family members were aware of the proceedings and it was only upon by having received an intimation/letter from the Juri ictional Assessing Officer that the family members came to know about the appeal having been dismissed. Since the delay is not only unintentional but on account of the above facts, it is requested that it may be condoned and appeal may be admitted and adjudicated upon in the interest of justice.

On careful consideration of the submissions of the assessee, we are of the considered opinion that the delay in filing of the present appeal was not intentional but due to unavoidable and sufficient cause. Such a bonafide mistake needs to be condoned. In this connection, reliance could be placed on the landmark decision of hon’ble Supreme Court which inter alia held in Collector, Land Acquisition v Mst.

Brief facts of the case are that the assessee Late Shri. Kasam Nurmad Karadiya, an individual engaged in the business of dairy farming and agricultural activity had filed his return of income for the year under consideration declaring total income of Rs. 1,87,320/-., Subsequently, reassessment proceedings were initiated by issuing notice u/s 148 of the Act, in response to which the assessee filed return declaring total income at Rs. 1,65,680/-. The assessment in respect of which was completed by assessing total income at Rs. 57,87,410/- by treating the capital receipts amounting to Rs. 55,74,800/- as Income

Against the said assessment order, assessee filed an appeal before the ld. CIT(A), which was decided vide an ex-parte order. It is evident that the appellate order has been passed in ex parte manner mainly on account of lack of proper compliance by the assessee during appeal proceedings. Consequently,the ld.CIT(A) has not decided the appeal on merits which is contrary to the mandate of section 250(6) of the Act. A bare perusal of the provision makes it clear that the CIT(A) is bound to dispose of the appeal before him on merits. Once an appeal is preferred before him, then in disposing of the appeal, he is obliged to make such further inquiry that he thinks fit or direct the AOto make further inquiry and report the result of the same to him as per section 250(4) of the Act. Section 251(1)(a) and (b) of the Act provide that while disposing of appeal the CIT(A) would have the power to confirm, reduce, enhance or annul an assessment and/or penalty. Besides, Explanation to sub-section (2) of Section 251 of the Act also makes it dear that while considering the appeal, the CIT(A) would be entitled to consider and decide any issue arising in the proceedings before him in appeal filed for P a g e | 6 A.Y. 2012-13 Late Shri Kasam Nurmad Karadiya its consideration, even if the issue is not raised by the appellant in its appeal before the CIT(A). The appellate order is therefore, deficient in this regard.

During the course of hearing, none attended. Since the ld. CIT(A) passed ex-parte order and the assessee was not provided adequate opportunity of being heard,we proposed that therepresentatives of the deceased assessee may be provided one more opportunity to advance their arguments/submissions before the lower authoritiesso as to provide details in connection with the merits of its case to support the contentions made in the grounds of appeal. The ld.DR agreed to this proposal.

We have heard both the parties and perused the materials available on record. In the light of above observations, in the substantial interest of justice, we set aside the appellate order and restore the entire matter back to the ld.CIT(A) for passing the appellate order de novo. In case of any failure on the part of the assessee, he would be at liberty to pass order after considering the materials on record. The assessee’s AR will not seek any adjournment on frivolous ground and remain cooperative during the course of proceedings before the ld.CIT(A).

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