AHMEDABAD MAHARASHTRIAN CO. OP. CREDIT & SUPPLY SOC. LTD.,AHMEDABAD vs. THE INCOME TAX OFFICER, WARD-1(3)(5), AHMEDABAD

The appeal is time barred by four days, but the learned counsel has moved a condonation petition wherein he states that it was due to his inadvertent lapse that the filing of appeal was delayed by four days. Having heard the parties and having perused the material on record, I am inclined to condone the delay as attributed to reasonable cause. Delay condoned.

Grievances raised by the appellant are as follows:- “1. The Ld. CIT(A) erred in law in dismissing the appeal of assessee by treating it as invalid merely on the hyper technical ground of non-filing of the affidavit/petition explaining the delay along with the appeal. 1.1 The Ld. CIT (A) ought to have given an opportunity to the assessee for filling an affidavit/petition explaining the delay in filling the appeal. 2. The Ld. CIT(A) erred in law and on facts in confirming the disallowance of Rs.8,63,920/- made by assessing officer u/s 80P(2)(a)(i) without appreciating the facts the case of the assessee.”

To adjudicate on this appeal, a few material facts need to be taken note of. When this appeal was filed before the CIT(A), he independently sought to conduct verification about the date of serving the order appealed against. He found that the order appealed against was served on 17.03.2015 whereas the appeal was filed by the assessee on 27.04.2015. On the basis of these facts, and without confronting the appellant with these facts or putting the assessee to notice in this respect or allowing the appellant to file a condonation petition, if required, the CIT(A) dismissed the appeal as time barred. The assessee is aggrieved and is in appeal before me.

I 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.

The action of the CIT(A) cannot meet any judicial approval. It is one of the most fundamental principle of judicial adjudication that “no person is condemned unheard” (audi alteram partem), and the action of the CIT(A) clearly violates it. In my considered view, not only the assessee appellant should have been given proper opportunity of hearing, the assessee appellant should also have been allowed an opportunity to file the condonation petition, if so advised. In view of these discussions, as also bearing in mind entirety of the case, I deem it fit and proper to remit the matter to the file of the CIT(A) for fresh adjudication, inter alia, in the light of the above observations. Ordered, accordingly.

In the result, the appeal is allowed for statistical purposes in the terms indicated above. Order pronounced in the open Court on this 15th day of October, 2018.