ANKUSH GUPTA,DELHI vs. ITO, WARD-40(1), DELHI

Brief facts of the case are that originally the assessment proceedings for the assessment year 2009-10 were complete by order dated 2/12/2011 passed under section 143(3) of the Income Tax Act, 1961 (for short “the Act”) by making an addition of Rs. 14, 78, 275/-on account of the peak credit, against which the assessee preferred an appeal before the Ld. CIT(A), which the Ld. CIT(A) dismissed ex parte by order dated 23/6/2014 and enhanced the addition to Rs. 33, 85, 000/-. Grievance of the assessee was that it was done without affording an opportunity of being heard to the assessee.When the assessee preferred appeal before the Tribunal in ITA 4697 /Del/ 2014 against such an order of the Ld. CIT(A), the Tribunal set aside the said order and restored the matter to the file of the Ld. CIT(A) to dispose it of according to law after affording an opportunity to the assessee.

After the remand Ld. CIT(A) passed the order dated 21/8/2019, which is impugned in this appeal, stating that during the course of appellate proceedings, he came to know that the appeal against the assessment order was already decided against the assessee by his predecessor by order dated 23/6/2014 and the assessee had inadvertently filed the present appeal which was already decided and therefore it had become infructuous. On this premise Ld. CIT(A) dismissed it as being a duplicate appeal. 4. It is submitted on behalf of the assessee that the Ld. CIT(A) did not decide the matter on merits as directed by the Tribunal, but on the other hand without affording an opportunity to the assessee he assumed that the assessee inadvertently preferred this appeal which was already disposed of by the order dated 23/6/2014, which in fact was set aside by the Tribunal while restoring the appeal to the file of the Ld. CIT(A).

Though Ld. DR vehemently opposed the condonation of delay, he could not controvert the fact of nationwide lockdown and pandemic and the normal life being upset during that period. Further, Ld. DR cannot plead any mollified is on the part of the assessee in allowing the appeal to be time-barred. Insofar as the disposal of the appeal by the Ld. CIT(A), not in accordance with the directions given by the Tribunal by the order dated 29/6/2016 in ITA No. 4697 /Del/ 2014, there is no dispute arise by the Ld. DR.

We have gone through the record in the light of the submissions made on either side. There are no reasons not to believe the explanation offered by the assessee for the delay occurred in preferring the appeal. Unless the rights of the parties are crystallized by afflux of time in any party, all the endeavour of the adjudicatory authorities shall be to see that a meritorious case would not be thrown out at the stage of threshold itself. Further, the highest that would happen by condoning the delay in this matter is that a matter could be considered on merits, and as could be seen from the impugned order, the merits heavily lie in favour of the assessee. By no stretch of imagination could we say that the assessee stands to gain by allowing the appeal to be time-barred. With this view of the matter we are inclined to hold that there is sufficient cause for the assessee in preferring the appeal with delay and, therefore, to condone the delay. Delay is accordingly condoned.

Now coming to the impugned order, it is a matter of record that by order dated 29/6/2016 Tribunal set aside the order dated 23/6/2014 passed by the Ld. CIT(A) and restored the appeal to the file of the Ld. CIT(A) to adjudicate it afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee. While passing the impugned order on 21/8/2019, Ld. CIT(A) missed this aspect and was labouring under the impression that since his predecessor disposed of the appeal by order dated 23/6/2014, Ld. DR before him was a duplicate and the infructuous one, and on that premise, he dismissed the same. Such a dismissal of appeal is patently improper and cannot be sustained. While reminding the Ld. CIT(A) of the order dated 29/6/2016 in /Del/ 2014 and the necessity to dispose of the appeal on merits after giving an opportunity to the assessee, we set aside the impugned order and restored the appeal to the file of the Ld. CIT(A) to comply with the directions given in the order dated 29/6/2016 in ITA No. 4697 /Del/ 2014.

Appeal of the assessee is, accordingly, allowed for statistical purpose.