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Facts
The assessee filed an appeal against the CIT(A)'s order which dismissed the appeal ex-parte due to non-appearance. The assessee sought condonation of a 568-day delay, explaining it was due to a former consultant's failure to inform them of the proceedings and the dismissal order. The assessment involved an addition of ₹33,00,000/-.
Held
The Tribunal condoned the significant delay in filing the appeal, finding the cause to be bonafide and in the interest of substantial justice. The Tribunal set aside the CIT(A)'s order and restored the matter to the Assessing Officer for fresh adjudication.
Key Issues
Whether the delay in filing the appeal should be condoned, and if so, whether the matter should be restored to the Assessing Officer for fresh adjudication on merits.
Sections Cited
147, 144, 271(1)(c), 142(1), 148, 250, 143(1)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “SMC” BENCH, AHMEDABAD
Before: DR. BRR KUMAR & SHRI SIDDHARTHA NAUTIYAL
(Assessment Year: 2012-13) Arifkhan Munirkhan Pathan, Vs. Income Tax Officer, 2905/3, Mamugi, S Khancho, Ward-1(2)(1), Dadamiya Gali, Poptiawad Ahmedabad Dariapur, Ahmedabad-380001 [PAN No.APDPP9101P] (Appellant) .. (Respondent) Shri Hem Chhajed, AR Appellant by : Respondent by: Shri Prateek Sharma, Sr. DR Date of Hearing 05.08.2025 13.08.2025 Date of Pronouncement O R D E R PER SIDDHARTHA NAUTIYAL - JUDICIAL MEMBER: These appeals have been filed by the Assessee against the order passed by the Ld. Commissioner of Income Tax (Appeals), (in short “Ld. CIT(A)”), National Faceless Appeal Centre (in short “NFAC”), Delhi vide orders dated 10.08.2023 & 08.02.2023 passed for A.Y. 2012-13.
The assessee has raised the following grounds of appeal:
&1142/Ahd/2025 Mohammed Salim Noorbhai Shaikh vs. DCIT & others Asst.Year –2012-13 - 2– (A.Y. 2012-13) “1. The order passed by the Ld. CIT(A) is against law, equity & justice.
2. The Ld. CIT(A) has erred in law and facts in upholding the addition made by the Ld. A.O. of Rs.33,00,000/- as undisclosed receipt.
The Ld. CIT(A) has erred in law and facts in upholding the assessment reopened by the Ld. A.O. only on the basis of execution of sale deed.
The appellant Craves liberty to add, amend, alter or modify all or any grounds of appeal before final appeal.” At the outset, we note that the assessee has filed application for condonation of delay of 568 days in filing of the present appeal.
3. Along with the appeal, the assessee has also filed a petition seeking condonation of delay in filing the appeal. We have considered the reasons given by the assessee in the condonation petition. In this case, the assessment in the case of the assessee was completed under section 147 read with section 144 of the Act, wherein an addition of ₹33,00,000/- was made. Against the said assessment order, the assessee had filed an appeal before the Ld. CIT(A), NFAC on 19.02.2018. However, the said appeal was dismissed ex parte by the CIT(A) on 10.08.2023 for want of prosecution, as the assessee did not appear nor did he file any submission in response to notices issued. The assessee has submitted in this Affidavit that he had handed over the papers to his earlier consultant for handling the appellate proceedings, but the said consultant failed to inform him about the progress of the case or the fact that the appeal was dismissed. The assessee only came to know about the dismissal of the appeal when he received a penalty order under section 271(1)(c) dated 31.03.2025. On learning this, the assessee immediately approached another professional, and it was only then that he became aware of the appellate order passed by the CIT(A). The delay in filing the present &1142/Ahd/2025 Mohammed Salim Noorbhai Shaikh vs. DCIT & others Asst.Year –2012-13 - 3– appeal before the Tribunal has occurred solely due to the assessee being unaware of the outcome of the appeal before the CIT(A). It is further submitted that the delay is neither deliberate nor intentional and has occurred due to circumstances beyond the control of the assessee. The assessee has also affirmed that he had no knowledge of the ex parte order and that if the delay is condoned, no prejudice would be caused to the Revenue and the matter could be decided on merits.
4. Having regard to the reasons explained by the assessee, we are satisfied that the delay in filing the appeal is supported by a bonafide cause. It is settled law that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, so long as the delay is not deliberate, negligent, or mala fide. In the present case, we are of the considered view that the explanation offered by the assessee constitutes a reasonable cause for the delay.
Accordingly, we condone the delay in filing the appeal before the Tribunal and admit the appeal for hearing on merits.
On merits: 6. The brief facts of the case are that for the Assessment Year 2012-13, the assessee originally filed his return of income on 17.12.2013 declaring a total income of ₹9,28,900/-. The return was processed under section 143(1) of the Income-tax Act (Act). Subsequently, the case was reopened under section 147 after recording reasons. However, the Assessing Officer noted that despite multiple notices issued under sections 142(1) of the Act, the assessee failed to comply with any of the notices or submit a return of income &1142/Ahd/2025 Mohammed Salim Noorbhai Shaikh vs. DCIT & others Asst.Year –2012-13 - 4– in response notice u/s 148 of the Act. The basis of reopening was that he had received a sum of ₹33,00,000/- as a confirming party in a registered sale deed dated 09.06.2011 relating to property at Block No. 569, Village Sarkhej, which had not been disclosed in the return of income. Despite having received this amount as compensation for facilitating legal and official formalities necessary for conversion of land on behalf of the seller, the assessee neither disclosed the same in his return nor responded to notices to explain the source or nature of this receipt. Accordingly, the Assessing Officer treated a sum of ₹33,00,000/- as unexplained and undisclosed income and added the same to the total income of the assessee.
In appeal, CIT(Appeals) dismissed the appeal of the assessee on account of non-appearance, with the following observations:
“5. During the course of this appellate proceeding, notices for hearing u/s.250 of the I T Act dated 13/02/2020, 31/12/2020, 02/11/2022 & 21/07/2023 were issued to the appellant. In response to the same, the appellant did not file any submission. A reference was made to the Assessing Officer (hereinafter referred to as the AO) for verification of particulars of appeal. In the absence of an adverse report from the AO, the particulars of the appeal are considered to be in order and the appeal is proceeded with on merit.
The appellant being aggrieved by the decision of the AO has instituted the present appeal, and accordingly he was issued notices for the hearing of the appeal u/s. 250 of the Act, followed by a number of refixation of notices by this office. The appellant despite getting several opportunities of being heard did not bother to pursue the appeal. There is nothing on record to suggest that the appellant ever asked for adjournment and no pleadings in this regard have been made by the appellant before the undersigned either. 6.1 It has been held by several courts that the law assists those who are vigilant and not those who sleep over their rights as found in the Maxim "Vigilantibus Non Dormientibus Jura Subveniunt". The maxim refers to the obligation of individuals to not only be aware of their rights under the law, but also to be vigilant while exercising or using the same. Hence, as an aware citizen, it was incumbent upon the appellant bank to be aware of the statutory provisions, to simultaneously comply with the requirements of law, and that it should pursue the legal remedies available diligently.
&1142/Ahd/2025 Mohammed Salim Noorbhai Shaikh vs. DCIT & others Asst.Year –2012-13 - 5– The Hon'ble Delhi High Court in the case of Moddus Media Pvt. Ltd. Vs. M/s Scone Exhibition Pvt. Ltd. (RFA 497/201dated 18 May,2017), while holding that the appellant bank ought to be vigilant and pursue the appeal filed by it, had observed as under. "11. The litigant owes a duty to be vigilant of his rights and is also expected to be equally vigilant about the judicial proceedings pending in the court of law against him or initiated at his instance......After filing the civil suit or written statement, the litigant cannot go off to sleep and wake up from a deep slumber after passing a long time as if the court is storage of the suits filed by such negligent litigants....." 6.2 It is a settled proposition of law that an appellant has to plead the case and produce/adduce sufficient evidence to substantiate his grounds of appeal and in the event of non-compliance from the end of the appellant in availing of the opportunities provided during the course of appeal proceedings, the appellate authority is under no obligation to continue the case to remain undecided endlessly. The fact that the appellant did receive the assessment order and filed the present appeal, but chose not to respond to any notices issued by the appellate authority clearly establish the assessee's total disregard to the due process of law. Hence, keeping in view the above mentioned facts and circumstances, I am satisfied that the appellant was provided sufficient opportunities to plead its case and contest the matter, but the appellant chose to let the case proceed ex-parte. The appellant has failed to make out any credible or cogent ground for not to decide the appeal ex-parte despite getting adequate and sufficient opportunities of being heard. 6.3 In view of the discussion made above, I do not find any reasons to interfere with the findings given by the AO in his order.
7. In the result, appeal of the appellant is ‘Dismissed’.”
8. The assessee is in appeal before us against the order passed by CIT(Appeals) dismissing the appeal of the assessee. Before us, the Counsel for the assessee submitted that the assessee has a good case on merits and if given an opportunity of hearing, the assessee is in a position to show that full disclosures have been made by the assessee with respect to the amount in question. Accordingly, it was submitted that the matter may be restored to the file of the Assessing Officer for de-novo consideration. In response, the Ld. DR placed reliance on the observations made by the Assessing Officer and Ld. CIT(Appeals) in their respective orders.
&1142/Ahd/2025 Mohammed Salim Noorbhai Shaikh vs. DCIT & others Asst.Year –2012-13 - 6– 9. We have heard the rival contentions and perused the material on record. Having considered the rival submissions and perused the records, we are of the view that in the interest of justice, one more opportunity ought to be given to the assessee to present his case. The assessment was completed ex parte, and the appellate order was also passed without hearing the assessee on merits. We are, therefore, inclined to set aside the impugned order of the CIT(Appeals) and restore the matter to the file of the Assessing Officer for fresh adjudication after affording a reasonable opportunity of being heard to the assessee. The assessee is directed to cooperate in the proceedings before the Assessing Officer and furnish all necessary documents and explanations in support of his claim.
In the result, the appeal of the assessee is allowed for statistical purposes. (A.Y. 2012-13)
The assessee has raised the following grounds of appeal:
“1. The order passed by the Ld. CIT(A) is against law, equity & justice. 2. The Ld. CIT(A) has erred in law and facts in upholding the addition made by the Ld. A.O. of Rs. 17,20,000/- as undisclosed receipt. 3. The appellant Craves liberty to add, amend, alter or modify all or any grounds of appeal before final appeal.”
12. We note that the facts and issues for consideration in this case are identical to that in ITA 1141/Ahd/2025. Since, we have restored the appeal of the assessee in ITA 1141/Ahd/2025 to the file of the Assessing Officer for de-novo consideration, we are hereby restoring present case to the file to the &1142/Ahd/2025 Mohammed Salim Noorbhai Shaikh vs. DCIT & others Asst.Year –2012-13 - 7– Assessing Officer for de-novo consideration, in the interest of justice. The delay in filing of appeal of the assessee is also condoned.
In the result, the appeal of the assessee is allowed for statistical purposes.
In the combined result, both the appeals of the assessees are allowed for statistical purposes. This Order pronounced in Open Court on 13/08/2025
Sd/- Sd/- (DR. BRR KUMAR) (SIDDHARTHA NAUTIYAL) VICE PRESIDENT JUDICIAL MEMBER Ahmedabad; Dated 13/08/2025 TANMAY, Sr. PS TRUE COPY आदेश की �ितिलिप अ�ेिषत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��थ� / The Respondent. संबंिधत आयकर आयु� / Concerned CIT 3. 4. आयकर आयु�(अपील) / The CIT(A)- 5. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER,