Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: SHRI ABY T. VARKEY, JM & SHRI GAGAN GOYAL, AM
स्थायीलेखासं./जीआइआरसं./PAN/GIR No. : AADPM9184G (अपीलाथी /Appellant) .. (प्रत्यथी / Respondent) Assessee by: None Revenue by: Smt. Mahita Nair (Sr. Ar. CIT) सुनवाईकीतारीख / Date of Hearing: 17/11/2022 घोषणाकीतारीख /Date of Pronouncement: 20/12/2022 आदेश / O R D E R PER ABY T. VARKEY, JM: These are appeals preferred by the assessee against order of the Ld. CIT(A) dated 27-07-2022 for A.Y. 2011-12 & AY. 2013-14.
None appeared for the assessee. However, having perused the grounds of appeal
raised by the assessee, we note that the main grievance of the assessee in & 2409/MUM/2022 AY 2011-12 & 2013
14. Manish kumudchandra Mehta both the appeals are against the action of the Ld.CIT(A) dismissing the appeal preferred by him on the ground that he has not filed along with the appeal, the application for condonation of delay; and therefore the Ld. CIT(A) has dismissed the appeal of the assessee. Since ground no. 1 of both the appeals for AY. 2011-12 & AY. 2013-14 are same (i.e. Ld. CIT(A)’s impugned action of dismissing the appeals preferred by the assessee on the reason of delay), we are inclined to decide both the appeal pertaining to AY. 2011-12 which decision will be followed for AY. 2013-14 also.
3. After hearing the Ld. DR for the department, it would be gainful to reproduce the reason given by the Ld.CIT(A) while dismissing the appeal of the assessee for AY. 2011-12 which is as under:- “The appellant has not filed any affidavit in support of the above contention. “It is seen from the facts of the case that the order appealed against is dated 29.11.16. The appellant has shown in Form No.35 that she has received this assessment order on 05.07.2019. The appeal was filed on 16/08/2019. First of all, the appellant could not properly explain as to how an order dated 29.11.16 has been received by him on 05.07.2019. It is mentioned in Form 35 that there is a delay in filing of appeal and no condonation application has been filed. This appeal should have been filed by 04.08.2019, even if it is accepted that the order dated 29.11.16 has been received by the appellant on 05.07.2019. As per the provisions of Sec. 249(2), an appeal before the CIT(A) is to be filed within 30 days of the receipt of notice of demand. Further, the delay may be condoned only 2 & 2409/MUM/2022 AY 2011-12 & 2013-14 Manish kumudchandra Mehta when the CIT(A) is satisfied that the appellant had sufficient cause for not presenting it within the due date.”
4. From a perusal of the aforesaid reason given by the Ld.CIT(A) it is discernable that the assessment order was passed on 29.11.2016, which according to assessee was received by him only 05.07.2019; and even as per the Ld.CIT(A), if the assessee’s contention is correct that he received the assessment order i.e, on 05.07.2019, then also he had to file the appeal on or before 04.08.2019; and since, the assessee has not filed any condonation application explaining the delay, the Ld.CIT(A) has dismissed the appeal filed by the assessee on 16.08.2019. According to the grounds of the appeal of the assessee, the Ld.CIT(A) has not condoned the delay of twelve (12) days in filling the appeal, since, the original assessment order u/s 143(3) r.w.s. 147 of the Income Tax Act, 1961 (herein after “the Act”) dated 29.11.2016 was not served upon him and that assessee received a duplicate copy of the same only on 05.07.2016. From the impugned decision given by the Ld.CIT(A) at page No.16 of the impugned order, we note that assessee has submitted certain relevant facts regarding delay caused which are as under:- “1. The appellant is a partner in M/s. Kumudchandra D. Mehta, a diamond trading firm, which had borrowed huge funds from Bank of Baroda and their account with the bank had become NPA. The firm could not repay the loan and hence their residential flat at Hanvant Bhavan, 4th floor, Nepean Sea Road was attached on 24.10.2016 and put to auction. The family was thrown out of the house and till today neither any loan is repaid nor did the appellant get the possession of the flat. The family was & 2409/MUM/2022 AY 2011-12 & 2013-14 Manish kumudchandra Mehta under great tension and trauma due to the attachment of the flat. Due to this reason the above said assessment order was not received by the appellant. The appellant came to know about the huge demand being outstanding only when they logged on to the income tax site.”
From a perusal of the aforesaid reason given by the assessee before the Ld. CIT(A), we note that the assessee has stated that he was partner in M/s Kumudchandra D. Mehta [a diamond trading firm] which had borrowed huge funds from Bank of Baroda and since their bank account had become Non Performing Asset (NPA) for Non Payment/repayment of loan, his residential flat at Hanvant Bhavan, 4th floor, Nepean Sea Road was attached by the bank on 24.10.2016 and put to auction. According to the assessee, thus his family was thrown out of the house and the assessee did not get back possession of the flat. Citing the aforesaid reason the assessee claims to have not got the assessment order passed by the Assessing Officer (AO) on 29.11.2016, which was later on collected by the assessee after applying for the duplicate only on 05.07.2019; and thereafter assessee had filed the appeal before the Ld.CIT(A) on 16.08.2019 and thus the there was delay of twelve (12) days for filling the appeal before the Ld.CIT(A). Be that as it may, we note that if an assessee aggrieved order of the Assessment Order has statutory remedy of filling an appeal before the Ld.CIT(A) and the Ld.CIT(A) has to decide the issues raised by giving reasons to issues raised in it. In this case the assessee has given the reasons that he didn’t receive the assessment order dated 29.11.2016 and at that period of time, his house where he was residing was put on auction by the bank; and he had to vacate the house and therefore he was not in 4 & 2409/MUM/2022 AY 2011-12 & 2013-14 Manish kumudchandra Mehta possession of the property and therefore did not get the assessment order passed in the year 2016. These facts need to be substantiated by evidence or at least by filing of an affidavit and the assessee should be able to explain the delay caused for filing of appeal on time as prescribed by the Statute. In any case, since the aforesaid facts has been brought to the notice of the Ld. CIT(A) (supra) and still he has dismissed the appeal of the assessee for non-filing of condonation application. We do not countenance such an action of Ld. CIT(A) in the back-drop of the facts discussed (supra); and so, we set aside the order of the Ld. CIT(A) and restore the appeal back to the file of Ld. CIT(A), with a direction to assessee to file affidavit or materials to substantiate the afore-stated facts for non-receipt of the assessment order dated 29.11.2016 (AY 2011-12);and thereafter to explain the cause of delay by filing of condonation application before the Ld.CIT(A); and the Ld.CIT(A) is expected to condone the delay, if there is reasonable cause/grounds for the delay in filing the appeal. And thereafter, the Ld.CIT(A) to decide the appeal of the assessee’s grounds of Appeal
on its merits in accordance to law.
6. In the result, the appeals of the assessee are allowed for statistical purposes. Order pronounced in the open court on this 20/12/2022.