LAXMICHAND KAPURJI PADHIYAR,DEESA vs. THE ITO, WARD-2, PALANPUR

The Registry has noted the appeal to be time barred by 66 days. The assessee has filed an application seeking condonation of delay stating that the delay occurred on account of the fact that the legal representative, who was engaged to represent his case and assist in filing the appeal, was involved in certain legal Kapurji Padhiyar vs. ITO] A.Y. 2016-17 - 2 – proceedings and was placed under judicial custody during the relevant period. Owing to the said legal complications and unavailability of the AR he was unable to get timely and appropriate professional guidance or representation for preparation and filing of the appeal. He contended that after becoming aware of the prolonged absence of the earlier AR and his inability to act in the matter, he appointed a new AR who immediately took necessary steps and ensured that the appeal was filed without any further delay. He contended that the delay was purely unintentional and caused due to the unfortunate and unavoidable circumstances. Ld. Counsel for the assessee pointed out that for the reason his AR was in judicial custody, the assessment proceedings remained unattended, resulting in the passing of ex parte order making addition to the tune of approximately Rs.20 Lakhs to his returned income of Rs.1,85,170/- i.e. addition being made multiple times of the returned income. He contended that even proceedings before the Ld. CIT(A) could not be attended for the same reason resulting in the multifold addition made being confirmed. He pleaded therefore that in the interest of justice the delay in filing of the appeal be condoned and the matter be restored back to the AO for reconsideration.

The Ld. DR objected to the condonation of delay.

Considering the explanation of the assessee for delay of 66 days in filing of the appeal duly supported by an affidavit, explaining that the delay was on account of non-availability of his AR who was in judicial custody and because of which, both Kapurji Padhiyar vs. ITO] A.Y. 2016-17 - 3 – the assessment and CIT(A) proceedings remained unattended resulting in addition made to his income multiple time to that returned by him and being confirmed by the Ld. CIT(A), I am of the view that the assessee has adduced sufficient cause for the delay in filing of the present appeal, and in the interest of justice therefore I condone the delay of 66 days in the filing of the present appeal.

Proceeding to adjudicate the appeal before me, I have gone through the orders of the authorities below and I have noted that the AO had passed an ex parte order making several additions to the income of the assessee which are as under: i. Disallowance of cold storage rent expenses to the tune of Rs.11,62,975/- on account of non-deduction of tax at source thereon u/s40(a)(ia) of the Act. ii. Claim of agricultural income of Rs.6,87,800/- as exempt disallowed and further treated as income from other sources in the absence of supporting documentary evidences. iii. Disallowance of housing loan interest expenses of Rs.1,29,399/- in the absence of any supporting documentary evidence.

The Ld. CIT(A), I have noted, has simply held the appeal as non-maintainable in the absence of any prosecution of the said appeal by the assessee. He noted the repeated failure on the part of the assessee to comply with the notices of hearing issued during appellate proceedings and in filing of any written submission by the assessee, and accordingly dismissed the appeal filed by the assessee for non-prosecution.

In the result, the appeal filed by the assessee is allowed for statistical purposes.