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Facts
The assessee filed an appeal against the CIT(A)'s order which dismissed the appeal due to a delay in filing. The assessee claimed the delay was due to his wife's illness and the Covid pandemic. The Assessing Officer had made an addition of Rs. 25,97,251/- on account of undisclosed income from the sale of shares as the assessee did not file a return for AY 2010-11 and did not respond to notices.
Held
The Tribunal condoned the delay in filing the appeal before it, noting that the delay before the CIT(A) was due to the assessee's wife's sickness and that sufficient evidence was provided. The Tribunal found that the CIT(A) and AO had not dealt with the merits of the case and remanded the matter back to the AO for fresh adjudication.
Key Issues
Whether the CIT(A) erred in not condoning the delay in filing the appeal before it, and whether the matter should be remanded to the Assessing Officer for adjudication on merits.
Sections Cited
250, 148, 142(1), 144
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, AHMEDABAD “D” BENCH, AHMEDABAD
Before: SMT. ANNAPURNA GUPTA & Ms. SUCHITRA KAMBLE
PER SUCHITRA KAMBLE, JUDICIAL MEMBER:
This appeal is filed by the Assessee against order dated 30.08.2019, passed by the CIT(A)-13, Ahmedabad for the Assessment Year 2010-11.
The assessee has raised the following grounds of appeal: -
“1.1 The order passed u/s.250 on 30.08.2019 for A.Y. 2010-11 CIT(A) dismissing the appeal on the ground of limitation is wholly illegal unlawful and against the principles of natural justice.
1.2 The Ld. CIT(A) has grievously erred in law and/or on facts in not considering the submissions and evidence filed by the appellant with regard to the impugned addition.
2.1 The Ld. CITA) has grievously erred in law and on facts in not condoning the delay in filing the appeal, though there was a sufficient cause for the same. The Id. CIT(A) has failed to appreciate the period of limitation for filing the appeal before CIT(A) was to Assessment Year: 2010-11 Subhashchandra Keshavlal Barot vs. ITO Page 2 of 4 expire on 11.02.2018, by which time appellant's wife was sick and hospitalized in the local place much earlier as evident from the certificate dated 22.02.2018 issued by Oxford University Hospital.
2.2 That in the facts and circumstances of the case as well as in law, the Ld. CIT(A) ought to have condoned the delay in filing the appeal before her since there was sufficient cause for the same.
3.1 The Ld. CIT(A) has erred in upholding that the appellant had not provided any cogent evidence in support of his contention inspite of providing sufficient opportunities when the appellant had already furnished on 14.03.2018 a forwarding letter and thereafter Paper Books relating to the shareholding and replies from SEBI etc. which were on record of CITIA) when she passed the impugned order on 30.08.2019. The Ld. CITIA) ought to have admitted the aforesaid evidence produced before her and decided the appeal on merits of the case.
It is, therefore, prayed that the order passed by CIT(A) rejecting the condonation of delay and upholding the addition of Rs.25,97,250/ may please be deleted.”
As per the information, the Assessing Officer observed that during the Assessment Year (A.Y.) 2010-11 the assessee made investments in shares of Rs.5,10,296/-. The assessee did not file return of income for the A.Y. 2010-11. This case was reported under non-filer monitoring system and letter was issued to the assessee for compliance. However, no response was filed by the assessee and, therefore, in the absence of any explanation from assessee, there was reason to believe by the Assessing Officer that the said transaction was unaccounted. Notice under Section 148 of the Income Tax Act,1961 was issued on 30.03.2017 after recording the reasons for reopening the case and after obtaining necessary satisfaction of the PCIT which was served upon the assessee. The assessee did not comply with the notice under Section 148 of the Act. Since the assessee is a NRI, notice under Section 142(1) of the Act dated 20.09.2017 was issued. There was no compliance to the said notice and after giving final notice the Assessing Officer passed the Assessment Order under Section 144 of the Act. The Assessing Officer held that the assessee sold shares of Asian Paints of Rs.25,97,251/- (quantity 1842) through Labdhi Stock & Derivatives Services Pvt. Ltd. on 04.08.2009 but there was no evidence given by the assessee to explain the said transactions and, therefore, made addition of the
Being aggrieved by the Assessment Order, the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee on the ground that there is a delay of two months in filing the appeal before the CIT(A).
The Ld. AR submitted that the delay before the Tribunal for filing the appeal is that of 425 days only and the subsequent period is that of Covid Pandemic period. The Ld. AR submitted that the delay in filing the present appeal before the Tribunal be condoned as it is not a deliberate delay but due to the difficulty to file the appeal and the assessee was not available in India during the said period. Therefore, the delay may be condoned.
The Ld. DR vehemently opposed the condonation of delay before the Tribunal.
After going through the reasons, the delay in filing the appeal before the Tribunal appears to be genuine and the same is, therefore, condoned.
The Ld. AR submitted that since the assessee’s wife was sick during the period from February 2018, the assessee could not file the appeal within the stipulated time before the CIT(A). There is only two months’ delay and that is due to the continuous illness of his wife for which the assessee has submitted the evidences. The Ld. AR further submitted that the matter may be remanded back to the file of the Assessing Officer as the Assessment Order as well as the order of the CIT(A) are not taken into account any details and the CIT(A) has not commented anything on merit and simply dismissed the appeal on the ground of delay.
The Ld. DR submitted that the CIT(A) has rightly dismissed the appeal of the assessee and in fact the Assessing Officer despite giving opportunity to the assessee, the assessee has not represented his case.
Assessment Year: 2010-11 Subhashchandra Keshavlal Barot vs. ITO Page 4 of 4 10. We have heard both the parties and perused all the relevant material available on record. It is pertinent to note that the assessee’s wife was sick and the documents in this regard was submitted before the CIT(A) and, therefore, the delay in filing the assessee’s appeal should have been condoned and the CIT(A) should have decided the issues on merit contested by the assessee. Since the Assessment Order is also ex-parte and there was no opportunity given to the assessee for filing the requisite details, it will be appropriate to remand back this matter to the file of the Assessing Officer for proper verification of the details filed by the assessee and adjudicate the same as per Income Tax Statute. The assessee be given opportunity of hearing by following the principles of natural justice. Appeal of the assessee is thus partly allowed for statistical purpose.
In the result, appeal filed by the assessee is partly allowed for statistical purpose.
Order pronounced in the open Court on this 10th January, 2025.