NIRANJANBHAI ISHVARBHAI PATEL,BANASKANTHA vs. THE ITO, WARD-1, HIMATNAGAR

The grounds raised

1. That the ld. CIT(A) erred in law and in the facts of the case in not condoning the delay in filing the appeal before it and thereby rendering the appeal inadmissible.”

At the outset itself, the ld. counsel for the assessee pointed out that the ld. CIT(A) has dismissed the assessee’s appeal as non-maintainable, not condoning the delay in filing the appeal before him. The solitary plea before me was that the matter be restored to the file of the ld. CIT(A) and the assessee be given another opportunity of hearing. He pointed out that in Form No.35 filed to the CIT(A), the assessee had mentioned the reasons for the delay as the assessee was suffering from various diseases and being advised rest by his doctor from 12th March 2022 to 26th August, 2022 which resulted into delay of 160 days in filing the appeal. He fairly admitted that even before the Assessing Officer the assessee did not participate in the assessment proceedings. The ld. counsel for the assessee contended that primarily the assessee is living in rural area and notices issued therefore un-responded being not aware of the e- notices being issued to the assessee. He contended that because of the non-representation of the assessee before the Assessing Officer and also before the CIT(A), the entire agricultural income of the assessee of Rs. 21,67,990/- had been added to his income ,as income from undisclosed sources, in the absence of any explanation and evidence of the source of earning the said income from agricultural activities. He contended, that as it is, the assessee was a man of meagre means having returned income of Rs. 13,19,210/- and the addition of Rs. 21,67,990/- made by the Assessing Officer if not allowed to be explained would result in the income being assessed multiple times to that actually earned by the assessee.

The ld. Departmental Representative contended that the assessee having failed to appear both before the Assessing Officer as well as before the CIT(A) and having even not 2 supported his explanation for the delay, the CIT(A) had rightly dismissed the appeal as non-maintainable by not condoning the delay. He vehemently opposed the assessee being given second chance before the Ld.CIT(A).

4.1 To this the Ld. Counsel for the assessee responded by placing an affidavit of the assessee explaining the reasons for delay in filing appeal to the Ld.CIT(A) on oath.

Having heard the contentions of both the parties , I am of the view that the present appeal needs to be heard afresh by the Ld.CIT(A), first on the aspect of its maintainability since the assessee has now filed an explanation of the same by way of an affidavit of the assessee bringing the reasons for delay on oath. Moreover, the Ld.CIT(A) ought to have considered the smallness of the delay , of only 50 odd days ,coupled with the fact of grave injustice being caused to the assessee if his appeal is not admitted as also the fact that the assessee in any case is not benefited by not filing an appeal, while considering the assesses application for condonation of delay.

In effect, the appeal of the assessee is allowed for statistical purposes.