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Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC-2’ NEW DELHI
Before: SHRI BHAVNESH SAINI & SHRI O.P. KANT
ORDER PER O.P. KANT, AM:
This appeal by the assessee is directed against order dated 28/02/2019 passed by the Ld. CIT (Appeals)-Ghaziabad [in short ‘the Ld. CIT(A)’] for assessment year 2009-10 raising following grounds:
01. Because Ld. AO erred in completing assessment u/s144/147 of the income Tax Act as assessee is not provided a reasonable opportunity of being heard.
02. Because Ld. AO erred in computing unexplained cash deposits in his saving bank account and added it to the income of the assessee u/s 68 of the I.T. Act, 1961 while assessee deposited such cash in his bank from his justified sources.
3. Because Ld. AO is not provided a proper opportunity of being heard for the sake of Natural Justice. 04. Because Ld. CIT (Appeal) has erred in confirming the ex-parte assessment order passed by the AO without giving an opportunity of being heard to the appellant & such order was made arbitrary while the delay in filling appeal was duly justified with the documentrail evidences. 05. The Assessee craves to add/alter any other grounds of the appeal before at the time of hearing.
None represented on behalf of the assessee and we have heard submission of the learned DR through Video Conferencing facility.
On perusal of the impugned order, we find that appeal of the assessee has been dismissed in limine by the Ld CIT(A) in view of the delay of 242 days in filing the appeal observing as under: “2.1 Examination of facts reveals that the notice of demand was served on 17.11.2016. Admittedly there is a delay of 242 days and appeal was to be filed only during December 2016. The appellant has taken certified copies on 07.07.2017 whereas appellant was released from jail on 03.04.2017. Thus appellant had sufficient time from April 2017 to July 2017 to file the appeal. Thus there is unjustifiable delay in filing the appeal. It is felt that appellant has not acted with reasonable diligence in prosecuting the appeal. Condonation of delay is not a matter of right since appellant has failed to show reasons of delay on last day of limitation and thereafter for each day. Reliance in this regard is- placed on decision in the case of Rankak & Ors, Vs Rewa Coalfields Ltd. AIR 1962 SC 361, JCIT vs Tractors & Farm Equipments Ltd. (ITAT, Chennai-TM) 104 ITD 149, Madhu Dadha vs ACIT (Mad) 317 ITR 458. Considering above facts and circumstances this appeal preferred by the appeal is treated as non-est being defective.”
We have noticed undisputed fact that the assessee was in jail during the period from 06/10/2016 to 03/04/2017 in relation to some criminal proceeding against him. The limitation for filing this appeal expired in December, 2016. As noted by the learned CIT(A), the assessee took certified copies on 07/07/2017 and thereafter filed the appeal with the request to condone the delay in filing the appeal. In the opinion of the learned CIT(A), there was unjustified delay in filing the appeal. However, we do not agree with the above finding of the learned CIT(A). The assessee was released from jail in the month of April, 2017 and he has obtained the certified copies and filed the appeal in the month of July, 2017. In our opinion, the period of three months in settling state of mind after jail for taking a stock of other proceedings including appellate proceedings in the present case, is not unreasonable and cannot be termed as unjustified delay. Accordingly, we condone the delay in filing the appeal before the CIT(A). Thus, we set aside the finding of the learned CIT(A) and direct him to admit the appeal and pass a reasoned order on merit in accordance with law after providing adequate opportunity of being heard. The grounds raised
by the assessee are accordingly allowed for statistical purposes.
5. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court.