NISAR AHMED KHAN,UJJAIN vs. INCOME TAX OFFICER 1(1) UJJAIN, UJJAIN
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आयकरअपीलीयअिधकरण, इंदौरɊायपीठ, इंदौर
IN THE INCOME TAX APPELLATE TRIBUNAL
INDORE BENCH, INDORE
BEFORE SHRI B.M. BIYANI, ACCOUNTANT MEMBER
AND SHRI PARESH M. JOSHI, JUDICIAL MEMBER
Assessment Year:2012-13
Nisar Ahmed Khan
04, Ahliya Bai Marg, Gali
No.6 Lohri Ka Pul,
Ujjain
बनाम/
Vs.
ITO 1(1)
Ujjain
(Assessee/Appellant)
(Revenue/Respondent)
PAN: ADBPK7807K
Assessee by Shri S.S. Deshpande, AR
Revenue by Shri Ashish Porwal, Sr. DR
Date of Hearing
22.09.2025
Date of Pronouncement
23.09.2025
आदेश/ O R D E R
Per B.M. Biyani, A.M.:
Feeling aggrieved by order of first-appeal dated 23.11.2023 passed by learned Commissioner of Income-Tax (Appeals)-Addl/JCIT(A)-2, Mumbai
[“CIT(A)”] which in turn arises out of assessment-order dated 29.11.2019
passed by learned ITO-1(1), Ujjain [“AO”] u/s 144/147 of Income-tax Act,
1961 [“the Act”] for Assessment-Year [“AY”] 2012-13, the assessee has filed this appeal on the grounds mentioned in Appeal Memo (Form No. 36).
Nisar Ahmed Khan
ITA No. 308/Ind/2025 - AY 2012-13
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2. The registry has informed that the present appeal is delayed by 420
days and therefore time-barred. Ld. AR for assessee submitted that the assessee is a retired person. He submitted that the assessee has filed a condonation-application supported by an affidavit. Referring to same, Ld. AR explained that in Form
No.
35
filed to CIT(A), the e-mail id gncu341@gmail.com / goyalandcompany@gmail.com was provided which belonged to assessee’s counsel. However, the counsel of assessee neither informed about the notices nor about impugned order. Therefore, neither the notices of hearing nor the impugned order sent by CIT(A) reached to assessee. Subsequently, when the assessee received recovery notice dated
19.02.2025 (copy of notice is placed before bench) from the office of AO, the assessee became aware of impugned order having been passed by CIT(A) as ex-parte. The assessee thereafter filed present appeal. Ld. AR very humbly submitted that there is no lethargy, negligence, mala fide intention or ulterior motive of assessee in making delay and the assessee does not stand to derive any benefit because of delay. He further submitted that the sole reason of delay is as explained in the condonation-application. He submitted that there is “sufficient cause” for delay and hence the delay should be condoned. Ld. DR for Revenue left the matter to the wi om of Bench without raising any objection. We have considered the explanation advanced by assessee and in absence of any contrary fact or material on record, the assessee is found to have a “sufficient cause” for delay in filing present appeal. We find that section 253(5) of the Act empowers the ITAT to admit
Nisar Ahmed Khan
ITA No. 308/Ind/2025 - AY 2012-13
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an appeal after expiry of prescribed time, if there is a “sufficient cause” for not presenting appeal within prescribed time. It is also a settled position by Hon’ble Supreme Court in Collector, Land Acquisition Vs Mst. Katiji and others 1987 AIR 1353, 1987 2 SCC 387 that whenever substantial justice and technical considerations are opposed to each other, the cause of substantial justice must be preferred by adopting a justice-oriented approach. Thus, taking into account the facts of case, the provision of section 253(5) and the decision of Hon’ble Supreme Court, we take a judicious view, condone delay, admit appeal and proceed with hearing.
3. On merit of case, Ld. AR submitted that the AO has also passed assessment-order ex-parte to assessee due to non-compliances of notices.
He submitted that the assessee shifted his residence from old address “04,
Ahilya Marg, Gali No. 6, Lohri Ka Pul, Ujjain” to new address “47/1, New
Hari Phatak, Mahakal Marg, Ujjain” but the AO issued physical notices u/s 147/142(1) to old address which is manifest from the noting made by AO in assessment-order thus: “This notice was served on the assessee through email of ITBA and speed-post on the last known address available in the records”; hence non-compliances occurred before AO. However, the assessee is having all relevant details/documents and is ready and willing to make a proper representation before AO if an opportunity is given and prays that the present matter should be remanded to the file of AO for a proper adjudication. Ld. AR also agrees that the assessee shall update new address and correct email id in departmental database.
Nisar Ahmed Khan
ITA No. 308/Ind/2025 - AY 2012-13
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4. Ld. DR for revenue agrees with the prayer of Ld. AR but makes a request to direct the assessee to represent his case before AO and do not seek unnecessary adjournments.
5. In view of above submissions of parties; having regard to the principle of natural justice and also bearing in mind that no prejudice would be caused to revenue if the present matter is restored at the level of AO, we remand this matter back to the file of AO for adjudication afresh, at the risk and responsibility of assessee. The AO shall give necessary opportunity of hearing to assessee and pass an appropriate order uninfluenced by his earlier order. The assessee is also directed to remain vigilant and ensure participation in the hearings as may be fixed by AO and do not seek unnecessary adjournments failing which the AO shall be at liberty to pass appropriate order in accordance with law. Ordered accordingly.
6. Resultantly, this appeal is allowed for statistical purpose.
Order pronounced in open court on 23/09/2025 (PARESH M. JOSHI)
ACCOUNTANT MEMBER
Indore
िदनांक/Dated :
23/09/2025
Patel/Sr. PS
Nisar Ahmed Khan
ITA No. 308/Ind/2025 - AY 2012-13
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Copies to:
(1)
The appellant
(2)
The respondent
(3)
CIT
(4)
CIT(A)
(5)
Departmental Representative
(6)
Guard File
By order
UE COPYSr. Private Secretary
Income Tax Appellate Tribunal
Indore Bench, Indore