AMARJIT SARWAN SINGH,MUMBAI vs. ITO, MUMBAI

After having heard the counsels for both the parties and going through the contentions of the application seeking for condonation of delay and also taking into consideration the principles as laid down by Hon’ble Supreme Court in the case of Land Acquisition Collector Vs. Mst. Katiji & Ors., [1987] AIR 1353 (SC) wherein it has been held that where substantial justice is pitted against technicalities of none deliberate delay, then in that eventuality substantial justice is to be preferred.

Thus, considering these principles and also taking into account that the application for seeking condonation of delay is supported by an affidavit. Whereas, on the contrary no affidavit has been filed by the department to rebut or controvert the facts, contained in the affidavit filed by the assessee. Therefore the contention of the affidavit filed by the assessee went un-rebutted. Considering the totality of the facts and legal preposition as discussed above, the delay in filing the appeals stands condoned.

At the outset, I noticed that assessee was ex-party before assessing officer and not submitted any documents before Ld. CIT(A) and consequently, the appeal was also dismissed by holding that during the survey incriminating documents were found which revealed that assessee had purchased flat and paid ‘on money’ in cash.

Where as on the contrary Ld. DR submitted that sufficient opportunities are granted to the assessee but still assessee failed to file any documents to controvert or rebut the incriminating evidence of ‘on money’ paid by the assessee

Be that as it may in my view, the interest of justice would be met in case the lis between the parties is decided on merits after providing fair opportunity of hearing to both the parties. Therefore, considering the above factual and legal proposition, the bench feels that the ends of justice would be met only if the matter is restored back to the file of AO therefore the present appeal of the assessee is restored to the file of AO for deciding the matter afresh on merits by providing opportunity of hearing to the assessee. Assessee is at liberty to file any other document if so advised before the AO. At the same time, the assessee shall not seek any adjournment on frivolous grounds and remain cooperative during the course of proceedings.

Before parting, we make it clear that our decision to restore the matter back to the file of the AO shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by the AO independently in accordance with law.

In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 24.01.2025. (SANDEEP GOSAIN) JUDICIAL MEMBER

अपीलाथ / The Appellant 2. थ / The Respondent. 3. संबंिधत आयकर आयु / The CIT(A) 4. आयकर आयु(अपील) / Concerned CIT 5. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण, मुबई / DR, ITAT, Mumbai 6. गाड फाईल / Guard file. आदेशानुसार/ BY ORDER, सािपत ित ////

उप/सहायक पंजीकार ( Asst.