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Income Tax Appellate Tribunal, “ SMC” BENCH, AHMEDABAD
Before: SHRI PRADIP KUMAR KEDIA&
आदेश / O R D E R
PER Ms. MADHUMITA ROY - JM: The instant appeal preferred by the assessee is directed against the order of the Commissioner of Income Tax(Appeals)-II, Baroda [Ld.CIT(A) in short] dated 20.12.2012 for the Assessment Year (AY)
ITA No. 3478/Ahd/2016 Late Rameshbhai Shankarbhai Jadav (L/h.Hansaben Rameshbhai Jadav) vs.ITO Asst.Year – 2008-09 - 2 - 2008-09 arising out of the assessment order dated 14/12/2010 passed u/s.144 of the Income Tax Act, 1961 (hereinafter referred to as "the Act").
Before going into the merits of the matter, we would like to mention that there is a delay of 1390 days in preferring the instant appeal by the assessee. The assessee submitted an Affidavit affirmed on 26/12/2016 explaining the delay praying for condonation of the same. The relevant portion whereof reads as follows:-
“The appeal is delayed by 1390 days on account of following reasons and I request the Hon'ble Tribunal to condone the delay considering the below mentioned facts: .
(a) My husband was carrying on business of auto parts in the name of Jai Mahakali Traders at Baroda. He filed return of income for A.Y. 2008-09 on 30/03/2009.
(b) Notice u/s 143(2) was issued on 19/09/2009 fixing hearing on 28/08/2009 (as gathered from the assessment order). Soon after my husband expired on 20th September, 2009.
ITA No. 3478/Ahd/2016 Late Rameshbhai Shankarbhai Jadav (L/h.Hansaben Rameshbhai Jadav) vs.ITO Asst.Year – 2008-09 - 3 - (c) Since I am not much literate (i.e. studied upto 6-7th standard) and was not aware of financial transactions undertaken by my husband, his business matters and his taxation matters, one of my relative who saw notice of income-tax at my residence informed the Assessing Officer through personal visit about death of my husband and submitted copy of death certificate somewhere in November, 2010.
(d) The Assessing Officer passed assessment order u/s 144 on 14/12/2010 determining income of Rs.15,22,262/- by making addition of Rs. 16,69,828/-in respect of unexplained credit card payments.
(e) The assessment order so passed was challenged before the Ld. CIT (A) by preferring appeal on 13/01/2011 with the assistance of my relatives.
(f) I kept on seeking adjournments before the Ld. CIT (A) with the assistance of my relatives because I had to adduce copies of credit card statements in order to prove that credit card payments were not unexplained but which were not readily in my possession. Some of the statements, correspondence was found at residence
ITA No. 3478/Ahd/2016 Late Rameshbhai Shankarbhai Jadav (L/h.Hansaben Rameshbhai Jadav) vs.ITO Asst.Year – 2008-09 - 4 - but complete statements were not in my possession for which I was making serious efforts.
(g) The Ld. CIT (A) passed ex-parte order on 20/12/2012 affirming action of Assessing Officer due to none appearance/ not seeking adjournment on 19/12/2012.
(h) I received order of Ld. CIT (A) on 03/01/2013. I approached tax practitioner through one of my relative for filing further appeal before the Hon'ble IT AT. The tax practitioner advised me to make payment of appeal fees of Rs. 10,000/-in order to make appeal to the Hon'ble ITAT. I made payment of appeal fees on 17th June, 2013.
(i) Thereafter, tax practitioner prepared appeal, got it signed from me and also prepared affidavit for condonation of delay which was signed before the Notary on 27/06/2013 under Registration No. 18439. Copy of appeal with statement of facts and grounds so prepared along with affidavit, is annexed as Annexure-A.
(j) I received recovery letter dated 07/10/2016- from the Assessing Officer requesting me to make payment of
ITA No. 3478/Ahd/2016 Late Rameshbhai Shankarbhai Jadav (L/h.Hansaben Rameshbhai Jadav) vs.ITO Asst.Year – 2008-09 - 5 - Rs.6,48,070/- and fixing hearing on 17/10/2016. On the date of hearing I informed the Assessing Officer that my appeal is pending before the Hon'ble ITAT and therefore, recovery may not be pursued. Copy of letter of Assessing Officer and my reply is annexed as Annexure-B.
(k) Subsequent to this I was informed by Assessing Officer through tax practitioner who drafted the reply to recovery notice that no appeal is pending before the Hon'ble ITAT in my case.
(l) Tax practitioner approached chartered accountant at Ahmedabad to inquire about status of pendency of appeal in my case before the Hon'ble ITAT. The chartered accountant after searching the ITAT portal online as well as through personal visit to the Hon'ble Tribunal informed that neither the appeal was preferred nor it is pending before the Hon'ble Tribunal for A.Y. 2008-09.
(m) The tax practitioner on coming know of this fact under my instruction advised chartered accountant to prepare the appeal to be filed before the Hon'ble Tribunal. Accordingly, relevant documents were provided to him including available copies of
ITA No. 3478/Ahd/2016 Late Rameshbhai Shankarbhai Jadav (L/h.Hansaben Rameshbhai Jadav) vs.ITO Asst.Year – 2008-09 - 6 - credit card statements etc. Copy of letter dtd 13/12/2016 addressed to the chartered accountant is annexed as Annexure-C.
(n) The chartered accountant prepared the appeal, mailed it to the tax practitioner at Baroda for my signatures. The appeal was signed and sent back to Ahmedabad and the same has been filed on 23/012/2016.”
We have gone through the said Affidavit and we find that sufficient cause for the delay on the part of the assessee in filing the instant appeal before the Tribunal has been shown. It is a settled principle of law that the latches on the part of the Counsel or the Chartered Accountant as the case may be the litigant should not suffer. The Ld.DR has not raised any objection in this regard. The said delay is, therefore, condoned and the appeal of the assessee is being disposed of on merit.
The appeal has been filed by the assessee with the following grounds:-
The Ld.CIT(A) erred on facts and in law in dismissing appeal of appellant ex-parte.
ITA No. 3478/Ahd/2016 Late Rameshbhai Shankarbhai Jadav (L/h.Hansaben Rameshbhai Jadav) vs.ITO Asst.Year – 2008-09 - 7 - 2. The Ld.CIT(A) erred on facts and in law in confirming action of Assessing Officer in passing order u/s.144 of the Act. 3. The Ld.CIT(A) erred on facts and in law in confirming action of Assessing Officer in making addition of Rs.16,69,828/- being payments made to various credit cards.
The ground Nos.1 to 3 are co-related to each other. Basically, the assessee has challenged the order under appeal on the ground that the same has been passed ex-parte by the CIT(A) relying on the ex-parte order passed by the Assessing Officer (AO).
The Ld.AR, at the time of hearing of the matter, submitted at the outset before us that the assessment order was passed ex-parte u/s.144 of the Act by the AO. The Ld.CIT(A) has also passed ex-parte order. It was thus urged that the same be sent back to the file of AO upon condoning the delay and the AO be directed to decide the matter afresh upon giving proper opportunity to the assessee. The Ld.DR has not raised any substantive objection in this matter. Therefore, in the larger interest of justice we are inclined to remit the matter back to the file of Ld.CIT(A) with a direction to decide the issue raised by the assessee on merit upon giving reasonable and proper opportunity of hearing. It is needless to mention that the assessee should co-operate in the appellate proceedings as and when called for by the Ld.CIT(A).
ITA No. 3478/Ahd/2016 Late Rameshbhai Shankarbhai Jadav (L/h.Hansaben Rameshbhai Jadav) vs.ITO Asst.Year – 2008-09 - 8 - 6. In the result, assessee’s appeal is allowed for statistical purposes. This Order pronounced in Open Court on 14/05/2018
Sd/- Sd/- (�द�प कुमार के�डया) (सु�ी मधु�मता रॉय) लेखा सद�य �या�यक सद�य ( Ms. MADHUMITA ROY ) ( PRADIPKUMAR KEDIA ) ACCOUNTANT MEMBER JUDICIAL MEMBER
Ahmedabad; Dated 14/ 05 /2018 ट�.सी.नायर, व.�न.स./T.C. NAIR, Sr. PS आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त(अपील) / The CIT(A)-II, Baroda �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 5. 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, स�या�पत ��त //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील�य अ�धकरण, अहमदाबाद / ITAT, Ahmedabad 1. Date of dictation ..3.5.18 (dictation-pad 11- pages attached at the end of this appeal-file) 2. Date on which the typed draft is placed before the Dictating Member …3.5.18 3. Other Member… 4. Date on which the approved draft comes to the Sr.P.S./P.S…………….. 5. Date on which the fair order is placed before the Dictating Member for pronouncement…… 6. Date on which the fair order comes back to the Sr.P.S./P.S…….14.5.18 7. Date on which the file goes to the Bench Clerk…………………14.5.18 8. Date on which the file goes to the Head Clerk…………………………………... 9. The date on which the file goes to the Assistant Registrar for signature on the order……………………..