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Income Tax Appellate Tribunal, JAIPUR BENCHES, JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM
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.
There is delay of 332 days in filing these appeals. The assessee has filed the
petition for condonation of delay as well as supporting affidavit.
We have heard the Ld. AR as well as Ld. D/R and perused the explanation
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).
The Ld. AR of the assessee has submitted that only on receipt of notices for
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.
On the other hand, the Ld. DR has vehemently opposed the condonation of
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.
Having considered the rival contentions as well as relevant material on record
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.
The assessee has raised the common grounds in these appeals:- The ground raised for the A.Y. 2004-05 are as under:-
“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.
That the appellant craves the right to add, delete, amend or abandon any of the grounds of appeal either before or at the time of hearing of appeal.”
We have heard the Ld. AR as well as Ld. D/R and considered the relevant
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.
In the result, appeals of the assessee are allowed for statistical purposes.
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
The Appellant-Sh. Mewa Singh Bola, Jhunjhunu. 2. The Respondent – ADWT, International Taxation, Jaipur. 3. The CIT. 4. The CIT (4), 5. The DR, ITAT, Jaipur 6. Guard File (WTA No. 02, 03 & 04/JP/2017) vkns'kkuqlkj@ By order,
सहायक पंजीकार@ Aेेपेजंदज. त्महपेजतंत