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Facts
The assessee challenged a CIT(A) order for AY 2012-13 with a delay in filing the appeal, for which condonation was sought. The CIT(A) had dismissed the appeal because the assessee was ex-parte before the AO and failed to rebut incriminating evidence of 'on money' payment discovered during a survey.
Held
The Tribunal condoned the delay in filing the appeal, citing the principle of substantial justice. It restored the matter to the Assessing Officer for fresh adjudication on merits, providing a fair opportunity of hearing to both parties, and allowing the assessee to file further documents.
Key Issues
1. Condonation of delay in filing the appeal. 2. Whether the case should be restored to the Assessing Officer for de novo adjudication on merits.
Sections Cited
250
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “SMC” BENCH MUMBAI
Before: HON’BLE SHRI SANDEEP GOSAIN
Assessee by Shri Bhupendra Shah Revenue by Shri Sunny Kachhwaha, Sr. DR Date of Hearing 21.01.2025 Date of Pronouncement 24.01.2025 आदेश / ORDER
PER SANDEEP GOSAIN, JM:
The present appeal has been filed by the assessee challenging the impugned order 08.02.2024, passed u/s 250 of the Income Tax Act, 1961 (‘the Act’), by the National Faceless Appeal Centre, Delhi (‘Ld. CIT(A)’) for the assessment year 2012-13.
There is a delay in filing the present appeal, and in this regard, the assessee has moved an application for the condonation of delay and the reasons given are supported by an affidavit.
2 Amarjit Sarwan Singh, 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.
3 Amarjit Sarwan Singh, Mumbai
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.
4 Amarjit Sarwan Singh, Mumbai
In the result, the appeal filed by the assessee is allowed for statistical purposes.