NARAYAN DAS KAMDAR,KISHANGARH vs. ITO, KISHANGARH

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR Jh fot; iky jko] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SINGH YADAV, AM

vk;dj vihy la-@WTA Nos. 02, 03 & 04/JP/2017 fu/kZkj.k o"kZ@Assessment Years : 2004-05, 2005-06,2006-07. cuke Sh. Mewa Singh Bola, ADWT Vs. M/s Bola Automobiles Road International Taxation , No. 3, Jhunjhunu. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN No. AHNPB 5477 E vihykFkhZ@Appellant izR;FkhZ@Respondent

fu/kZkfjrh dh vksj ls@ Assessee by : Shri Manish Agarwal (CA) jktLo dh vksj ls@ Revenue by : Shri A.S. Nehra (JCIT)

lquokbZ dh rkjh[k@ Date of Hearing : 14.12.2017. ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 27/02/2018.

vkns'k@ ORDER PER BENCH

These three appeals by the assessee are directed against the three separate

orders of Commissioner of Wealth Tax (Appeals)-42, New Delhi, dated 16/02/2016

and 19/02/2016 for the Assessment Years 2004-05, 2005-06 & 2006-07 respectively.

petition for condonation of delay as well as supporting affidavit.

furnished by the assessee in the application for condonation of delay. The assessee

has stated to be a Non Resident Indian (NRI) living in Saudi Arabia since last 25

years and has not visited in India for last 2-3 years during which the Wealth tax

assessment proceedings were under progress. It was further submitted that the

assessment proceedings were completed in the absence of assessee and without

2 WTA Nos. 02,03 & 04/JP/2017. Sh. Mewa Singh Bola, Jhunjhunu.

providing sufficient opportunities of being heard. The assessee has stated in the

application that the impugned orders passed by the Ld. Commissioner of Wealth Tax

(A) were not received by the assessee but the same were served upon the business

place of the assessee in India, and was kept by his staff without realizing the

importance of the same. Therefore, the assessee was not aware about the

impugned orders passed by the Ld. Commissioner of Wealth-tax (A), and only when

the notice for levying the penalty by the AO were received by the assessee, the

assessee realized the non receipts of impugned orders passed by the CWT(A).

levy of penalty, the assessee consulted with his Counsel who enquired about the

status of appeals filed against the orders passed by the Ld. Commissioner of Wealth

Tax (A). Thus, it was pleaded that the delay in filing the appeal is neither intentional

nor willful but due to the bonafide mistake and is absolutely inadvertent and has

occurred due to circumstances beyond the control of the assessee. Thus, the Ld.

AR has pleaded that the delay in filing the appeal may be condoned. The CWT (A)

passed impugned orders ex-parte without hearing the assessee.

delay and submitted that this is not an ordinary delay in filing the appeal, but the

assessee cannot misuse the process of law by filing the belated appeal after about

332 days. Thus, the Ld. DR has contended that explanation of the assessee cannot

be considered as reasonable or sufficient cause for not filing the appeals within the

period of limitation.

we note that the assessee is a Non-Resident Indian (NRI) and working in Saudi

3 WTA Nos. 02,03 & 04/JP/2017. Sh. Mewa Singh Bola, Jhunjhunu.

Arabia for last more than 20 years. The assessee is having his business in India in

the name and style of M/s Bola Automobiles at Jhujhunu. Though, the assesse

challenged the assessment order passed by the AO before the Ld. CWT(A), however,

none has appeared on behalf of the assessee before the CWT(A) and the impugned

orders were passed ex-parte. This shows that the assessee being away and outside

India could not look after the tax matters personally, but was completely dependent

upon representatives for this purpose. It is also not in a dispute that the impugned

orders were not received by the assessee personally because of his non-availability

of India but were served at the business place of the assessee. The possibilities of

not bringing the impugned orders to the knowledge of the assessee cannot be ruled

out. Though, the assessee cannot take the plea of his being NRI could not file the

appeal within a period of limitation however, since the assessee has explained that

the orders were served at the business premises of the assessee and the employee

of the assessee could not brought to the notice of the assessee, the receipt of the

impugned orders. Thus, the explanation and reasons put forth by the assesee do not

show that the assessee has acted in malafide and to take advantage of saving the

limitation in an under hand way. We find that the assessee being not visted India

for last 2-3 years itself is a cogent reason for not taking the requisite steps in time

for filing the appeals against the impugned orders. Therefore, following the settled

proposition of law that the Courts should take a liberal approach while deciding the

condonation of delay we are satisfied that the reason and cause explained by the

assessee are sufficient for not filing the appeals within the period of limitation. The

cause of substantial justice has to be preferred when pitted against the technical

consideration. Therefore, having regard to the facts and circumstances of the case

4 WTA Nos. 02,03 & 04/JP/2017. Sh. Mewa Singh Bola, Jhunjhunu.

and in the interest of justice we condone the delay of 332 days in filing these

appeals.

“1. On the facts and in the circumstances of the case and in law, Ld. CWT (A) erred in confirming the order passed by Ld. AO without providing sufficient opportunity of being heard.

1.1 That the Ld. CWT(A) erred in confirming the computation of Net Wealth of Assessee as Rs. 55,52,000/- as made by Ld. AO without considering the submission made by assessee.

1.2 That, the Ld. CWT(A) erred in confirming the order passed by Ld. AO ignoring the submission made by assessee that all the properties under consideration were agricultural lands and thus exempt from Wealth Tax.

material on record. The impugned orders were passed by the CWT(A) ex parte

when nobody has appeared on behalf of the assessee. Since the assessee is depend

on the Authorized Representative and could not look after the matter personally as

staying outside India therefore, in the facts and circumstances of the case and in the

interest of justice, we allow one more opportunity to the assessee to present his

case before the Ld. CWT(A). Accordingly, the impugned orders are set aside and

the matter is remanded to the record of the CWT(A) for deciding the same afresh

after allowing the opportunity of hearing to the assessee. We make it clear that if

the assessee fails to appear before the ld. CWT then the opportunity granted by us

would stand vacated.

5 WTA Nos. 02,03 & 04/JP/2017. Sh. Mewa Singh Bola, Jhunjhunu.

Order pronounced in the open court on 27/02/2018.

Sd/- Sd/- (foØe flag ;kno ½ (Jh fot; iky jko]) (VIKRAM SINGH YADAV) (VIJAY PAL RAO) ys[kk lnL; /Accountant Member U;kf;d lnL; / Judicial Member

Jaipur Dated:-27/02/2018. Pooja/ आदेश की प्रतिलिपि अग्रेषित@ब्वचल वf जीम वतकमत वितूंतकमक जवरू

सहायक पंजीकार@ Aेेपेजंदज. त्महपेजतंत