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Income Tax Appellate Tribunal, AHMEDABAD “SMC” BENCH, AHMEDABAD
By way of this appeal, the assessee appellant has challenged correctness of the order dated 30.01.2017, passed by the learned CIT(A), in the matter of assessment under section 143(3) of the Income Tax Act, 1961, for the assessment year 2012-13. 2. The grievances raised in the appeal are as follows :-
(1) The Ld. Commissioner of Income-tax (A) has erred in law and on facts in dismissing the appeal raising the grounds of appeal against the addition of Rs.15,16,000/- made by the Assessing Officer as unexplained cash credit and also against the disallowance of Rs.4,11,000/- out of salary expenses claimed. (2) The Ld. Commissioner of Income-tax (A) has erred in law and on facts in dismissing the appeal on the ground of filing the appeal belatedly without calling for the explanation from the appellant before dismissing the appeal. (3) The Ld. Commissioner of Income-tax (A) ought to have granted an opportunity of being heard to the appellant so as to meet with the
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principles of natural justice and to appraise the genuine difficulties faced by your appellant which resulted delay in filing the appeal. (4) On the facts and in circumstances of the case, the Ld. Commissioner of Income tax (A) ought to have granted the relief as prayed by the appellant and ought to have granted appropriate relief as deemed fit. (5) It is, therefore, prayed that the order of the Ld. Commissioner of Income-tax (A) may be set-aside and the ld. CIT(A) be directed to issue fresh notice of hearing for considering the issue of condonation of delay in filing the appeal in question and decide the grounds of appeal on merits. (6) It is alternatively also prayed that the grounds of appeal as raised through memo of appeal filed before the ld. CIT(A) be considered and the appropriate relief as prayed therein be granted.” 3. When this appeal was called out for hearing, learned counsel for the assessee pointed out that the ld. CIT(A) in the impugned order dismissed the appeal ex-parte on the ground that the appeal was time barred by 19 days. Learned counsel submits that the assessee was not put to notice with regard to the alleged deficiency attributed and no opportunity was given to explain the delay and to file condonation petition, as may have been necessary. It is pointed out that the ld. CIT(A) has decided the appeal without affording the assessee any opportunity of hearing and dismissed the appeal ex- parte on the ground that it is a delayed appeal unaccompanied by a petition seeking for condonation of delay. He further submits that it is not statutory requirement that the condonation petition must be filed along with the appeal itself and it can always be filed during the course of hearing. He, however, prayed that the matter may be restored to the ld. CIT(A) for adjudicating this aspect afresh on merit, as may be necessary, after giving the assessee an opportunity to explain the actual facts with respect to delay and filing of condonation petition.
Learned Departmental Representative vehemently relies upon the stand of the ld. CIT(A) and submits that it is not statutory requirement on the part of the ld. CIT(A) to issue specific notice with respect to delay in filing of condonation of delay on the part of the assessee.
We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position.
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In my considered view the very essence of judicial process itself is transparency. A fair opportunity to both the parties ought to be given in situations in which the appellant is deprived of his right valuable rights, such as right to appeal. The appellant should be afforded opportunity not only to explain the correct fact but also to file condonation petition as may be necessary. The absence of condonation petition, in a situation in which assessee has not been afforded any opportunity of hearing in this regard, and confronted with the fact of delay in filing appeal, cannot be ground enough to dismiss the appeal ex-parte. I, therefore, deem it fit and proper to remit the matter to the file of ld. CIT(A) for adjudication afresh, after putting the assessee to notice with respect to alleged delay and giving him an opportunity to file a condonation petition, if necessary, and then decide the matter on merit after giving a fair opportunity of hearing to the assessee.
In the result, appeal is allowed for statistical purposes. Order dictated and pronounced in the open court immediately after hearing on the 12th October, 2018.
Sd/- Pramod Kumar (Accountant Member) Dated: Ahmedabad, the 12th day of October, 2018.
PBN/*
Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) DR (6) Guard File
By order
Assistant Registrar Income Tax Appellate Tribunal Ahmedabad benches, Ahmedabad