SATISH KUMAR RADHESHYAM CHOUDHARI,INDORE vs. INCOME TAX OFFICER, INDORE

आदेश / O R D E R

Per Paresh M Joshi, J.M.:

This is an appeal filed by the assessee before this Tribunal

in terms of Section 253 of the Income Tax Act, 1961 (hereinafter

referred to as the ‘Act’ for sake of brevity). The assessee is

aggrieved by the order bearing Number:

ITBA/NFAC/S/250/2024-25/1064243581(1) dated 21.04.2024

of Ld. CIT(A) passed u/s 250 of the Act, which is hereinafter

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Satish Kumar Radheshyam Choudhari ITA No. 406/Ind/2024 – AY 2013-14 referred to as the “impugned order”. The relevant Assessment

Year is 2013-14 and the corresponding previous year period is

from 01.04.2012 to 31.03.2013.

2.1 That by way of an assessment order bearing Number ITBA/

AST/S/147/2021-22/1041123873(1) dated 21.03.2022 income

of the assessee was computed at Rs.18,79,754/- in terms of

Section 144/147 r.w.s. 144B of the Act which is hereinafter

referred to as the “impugned assessment order”.

2.2 That the assessee being aggrieved by the “impugned order”

preferred an first appeal in terms of Section 246A of the Act

before Ld. CIT(A) and who by impugned order at para 3.4 has

observed and avered as under:-

“3.4 During the course of appellate proceedings, it is seen that while the impugned order sought to be challenged in this appeal was passed on 21.03.2022 and the appeal has been filed only on 08.01.2024 i.e. after 658days from the date of passing of order u/s 147 r.w.s. 144of the Act. Therefore, there has been a delay of 628 days in filing the appeal. The appellant in Form No. 35 has attributed delay in filing appeal due to delay at the end of the tax consultant. The relevant extract of the appellant with respect to condonation of delay is reproduced as under:- "The appellant was in process of fling the appeal within 30 days of the date of passing of order and he has paid the

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Satish Kumar Radheshyam Choudhari ITA No. 406/Ind/2024 – AY 2013-14 challan in bonafide and was in process of fling of appeal. He has paid the challan and provided it to the consultant who was fling his appeal. But due to certain issues in portal at that time he was not able to file the appeal within the stipulated time and the appellant was in impression that his appeal was filed by his consultant. Later on when he approached to the counsel to know the update of appeal. They encountered that the appeal was not fled at that time. It clearly shows that there was no mensrea from appellants end. Therefore, it is prayed to condone the delay and accept the said appeal.” 2.3 That in para 3.5 of the impugned order the Ld. CIT(A) has

observed and avered as under:-

“3.5 I have carefully gone through the reasons advanced by the appellant for filing the appeal belatedly. There is a delay of 628 days in filing the appeal. As per section 249(2) of the I.T. Act, the assessee shall present its appeal within 30 days of service of notice of demand relating to the assessment. The section 249(3) of the IT Act, empowers the first appellate authority to admit the appeal after the expiry of limitation of time for filing the appeal if appellant had good and sufficient reasons for the not presenting the appeal within the time period prescribed u/s 249(2) of the Act.” 2.4 That in para 4 of the impugned order the Ld. CIT(A) has

observed and avered as follows:-

“4. According to the appellant, there is reasonable cause for filing the appeal belatedly. The delay was not willful but due to the circumstances beyond the control of the assessee. The reason stated by the appellant issue to delay at the end of the tax consultant”. 2.5 That the Ld. CIT(A) in the impugned order from para 4.1 to

7 examined the cause of delay and law on condonation of delay

and finally in para 7.1, 7.2 & 7.3 has held as under:-

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Satish Kumar Radheshyam Choudhari ITA No. 406/Ind/2024 – AY 2013-14 “7.1. The appellant, in the present situation, appears to be guilty of latches or negligence and does not take appropriate steps to peruse the remedy till about 628 days and thus does not take appropriate action in filing the appeal within the prescribed time. In the light of the above discussion and considering the facts and position of the law on this issue, I find that there is no sufficient cause for condoning the delay in the institution of appeal by the appellant and thus the application of the appellant for condonation of delay is hereby rejected.

7.2 Since the appeal is being dismissed on account of being filed beyond the period prescribed under the Act, therefore, I am not expressing any opinion on merit of the case.

7.3 The appeal of the appellant is dismissed for statistical purpose.” 2.6 That the assessee being aggrieved by the “impugned order”

has preferred this second appeal u/s 253 of the Act before this

Tribunal and has raised following grounds of appeal against the

impugned order in Form No.36 which are as under:-

2 On the facts and circumstances of the case and in law the National Faceless Assessment Centre erred in passing reassessment order under Section 147 of the Income Tax Act. The Appellant prays that the impugned order being unjustified, unwarranted and uncalled for be directed to be quashed.

3 On the facts and circumstances of the case and in law the NFAC erred in making addition of Rs.3,97,600 under Section 68 of the Act on the alleged ground of unexplained cash credit to

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Satish Kumar Radheshyam Choudhari ITA No. 406/Ind/2024 – AY 2013-14 the income of the Appellant. The Appellant prays that the said addition be directed to be deleted. 4 On the facts and circumstances of the case and in law the NFAC erred in making addition under Section 68 of the Act without appreciating that the loan has been received from close relative of the Appellant whose identity and creditworthiness of the creditors is known, and the genuineness of the transaction is not doubtful. Accordingly, the Appellant prays that the said addition be directed to be deleted. 5 On the facts and circumstances of the case and in law the NFAC erred in passing an order without giving proper opportunity of being heard to the Appellant as the notices being issued to the Appellant were not received by him. The Appellant prays that the impugned order being illegal, unjustified, and in gross violation of principles of natural justice be directed to be quashed. 6 Appellant Craves to add delete or modify any grounds of appeal.” 3. Record of Hearing

3.1 The hearing in the matter took place before this Tribunal on

07.04.2025 when the Ld. AR for and on the behalf of the assessee

interalia contended before us that the “impugned order” is bad

in law, illegal and not proper. The impugned order is in violation

of the principle of natural justice in much before rejecting and/or

dismissing the appeal and that too when the assessee first appeal

under the Act; at least Ld. CIT(A) should have given an

opportunity of hearing to the assessee which was not given.

Under these circumstances basic elementary principle of natural

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Satish Kumar Radheshyam Choudhari ITA No. 406/Ind/2024 – AY 2013-14 justice stands violated by a statutory functionary who is

mandated by law to follow basis tenets of the principles of

natural justice which stands not followed. Per contra Ld. DR has

interalia contended that the submissions of Ld. AR no doubt has

credence but he would prefer to go by the “Impugned order”. The

Ld. DR however has left the issue finally to this Tribunal to take

appropriate call according to law. In rejoinder Ld. AR submitted

that it is required to be appreciated that appeal is rejected as

dismissed solely on ground of delay and it is clearly recorded in

para 7.2 of impugned order (supra) that appeal is not disposed off

on merits of the case and that he is not expressing any opinion

on merit of the case.

4.1 We now have to examine the legality, the validity and so also

the proprietary of the “Impugned Order” basis records of the case

and rival contentions canvassed before us.

4.2 We have carefully perused records of the case and have

examined the same records of the case. The detailed reasons for

condonation of delay of 628 in preferring first appeal is not

furnished to us. Be that as it may it is up to first appellate

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Satish Kumar Radheshyam Choudhari ITA No. 406/Ind/2024 – AY 2013-14 authority i.e. Ld. CIT(A) to appreciate this fact and that too after

granting an opportunity of hearing to the assessee which in the

instant case has not happened despite settled law.

4.3 In the premises drawn up by us, we set aside the impugned

order and remand the case back to the file of CIT(A) on denovo

basis. We direct the Ld. CIT(A) to give to the assessee an

opportunity of hearing and after hearing and considering his case

on issue of delay he is at full and complete liberty to pass

appropriate order on delay aspect involved in the case. We are

not making any observation whatsoever on aspect of delay which

is core issue of this appeal. We sincerely hope and trust that in

opportunity so provided by Ld. CIT(A) the assessee would

cooperate with the Department and shall not seek any

unnecessary adjournment and fully explain in bonafide manner

the causes of delay in preferring first appeal.

5.1 In result, impugned order is set aside and matter is

remanded to CIT(A) on denovo basis.

5.2 Appeal allowed for statistical purpose.

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Satish Kumar Radheshyam Choudhari ITA No. 406/Ind/2024 – AY 2013-14 Order pronounced in open court on 07.04.2025.

Sd/- Sd/-

(BHAGIRATH MAL BIYANI) (PARESH M JOSHI) ACCOUNTANT MEMBER JUDICIAL MEMBER Indore िदनांक /Dated : 07/04/2025 Dev/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Senior Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore

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