NILESH PORWAL,INDORE vs. DCIT/ACIT, INDORE

Feeling aggrieved by order of first-appeal dated 11.06.2024 passed by learned Commissioner of Income-Tax (Appeals)-NFAC, Delhi [“CIT(A)”] which in turn arises out of assessment-order dated 22.12.2019 passed by learned DCIT/ACIT-5(1), Indore [“AO”] u/s 144 of Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2017-18, the assessee has filed this appeal on the grounds mentioned in Appeal Memo (Form No. 36).

The registry has informed that the present appeal is delayed by 109 days and therefore time-barred. Ld. AR for assessee submitted that the assessee has filed an application for condonation of delay supported by an affidavit on stamp. On perusal of the application/affidavit, we observe that the assessee has stated that he had suffered from Hepatitis at the relevant time and remained ill; hence there occurred delay. The assessee has filed a medical certificate of Dr. M. Raje, Indore in this regard. 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 the illness of assessee. 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 wisdom 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 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

On merit of case, Ld. AR submitted that the AO has disallowed deductions of Rs. 42,24,413/- claimed by assessee u/s 57 in computing income from other sources. He submitted that the assessee filed initial reply to AO which is re-produced by AO himself on Page 2-3 of assessment-order but the assessee was not able to collect the relevant supporting evidences and submit to AO, therefore the AO made assessment u/s 144 and disallowed assessee’s claim of deductions. Subsequently the assessee collected all supporting evidences and submitted to CIT(A) as additional evidences in terms of Rule 46A of Income-tax Rules, 1962 but being unaware of technicalities of law did not submit a formal application for admission of those evidences under Rule 46A, therefore the CIT(A) confirmed the disallowance made by AO without taking cognizance of those evidences [Para 8 of order passed by CIT(A)]. Ld. AR submitted that the reply submitted by assessee to CIT(A) accompanied by evidences is placed at Pages 57-200 of Paper-Book. Ld. AR acknowledged that the assessee is ready and willing to make a proper representation before lower authorities if an opportunity is given. In the situation, Ld. AR prays that the present matter should be remanded to the file of AO for a proper adjudication.

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.

Considering 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.

Resultantly, this appeal is allowed for statistical purpose.