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Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC’: NEW DELHI
Before: SMT. DIVA SINGH
The present appeal has been filed by the assessee assailing the correctness of the Order dated 30.11.2018 of CIT(A)- Ghaziabad, pertaining to 2011-12 Assessment Year on various grounds including ground nos. 2 and 4. However since the parties were heard only on these grounds accordingly they are reproduced hereunder: “2. That by denying the assessee an effective opportunity of being heard, the Ld. CIT(A) had arbitrarily taken away the assessee’s right to (i) justify the delay occurred in filing of appeal; (ii) raise an additional ground of appeal challenging the assumption of jurisdiction u/s 147, and (iii) present her case on merits.
4. That on the facts of the case and under the law, the assumption of jurisdiction u/s 147 is illegal.”
2. The relevant facts of the case are that the appeal filed by the assessee before the CIT(A) was delayed by five months. Para 2 and 2.1 of the impugned Order which brings out the factual matrix and under challenge in the present proceedings are reproduced hereunder for the sake of completeness :
ITA No.:- 1400/Del/2019 Sunita Devi. “2. The appellant filed the appeal on 16.07.2017 which is found to be delayed by more than 5 months. As per Form 35 the appellant claimed to be suffering from arthritis and was ignorant about law. Admittedly appellant was traveling for treatment to Delhi, immobility cannot be considered as an argument for delay of more than 5 months especially considering the fact that appeal can also be e- filed. 2.1. The notice for explaining the delay was sent to the appellant on 14.11.2018 at the address given in Form 35 for the communication through the speed post and e-mail. No reply of cause for delay in filing appeal has been given by the appellant. Five months delay cannot be explained mere taking argument of ignorance of law. Examination of facts reveals that the notice of demand was served on 30.12.2016. Thus there is unjustifiable delay in filing the appeal. Condonation of delay is not a matter of right since appellant has failed to show reasons of delay on last day of limitation and thereafter for each day, it is felt that appellant has not acted with reasonable diligence in prosecuting the appeal. Reliance in this regard is placed on decision in the case of Rankak & Ors, Vs Rewa Coalfields Ltd. AIR 1962 SC 361, JCIT vs Tractors & Farm Equipments Ltd. (ITAT, Chennai-TM) 104 ITD 149, Madhu Dadha vsACIT (Mad) 317 ITR 458. Considering above facts and circumstances this appeal preferred by the appellant is treated as non-est being defective.”
The Ld. AR inviting attention to the records submitted that the CIT(A). before the passing of the order did not provide an opportunity of being heard to the assessee. Referring to Form No. 35 which is a copy of the Memo of Appeal filed by the assessee before the CIT(A) it was his submission that in specific columns 14 and 15, the assessee had clearly accepted the fact that there was a delay in filing of the appeal and in column no. 15 had also offered an explanation for the delay. The relevant extract referred to from the record relied upon by the assessee is reproduced for ready reference:
In the said background it was his submission that an opportunity of being heard was never provided to the assessee by the CIT(A). It was submitted that had such an opportunity been provided the assessee would have been able to draw attention to the explanation which may not have been considered. The order was assailed on the grounds of being arbitrary and contrary to record. Relying on the affidavit filed, it was submitted that the assessee being Page 2 of 4 ITA No.:- 1400/Del/2019 Sunita Devi. a chronic patient of arthritis had been informed by her C.A. that for filing an appeal online, an electronic digital signature (DSC) was necessary. Affidavit of the assessee was relied upon. It was submitted that the DSC was made available to the assessee only on 12.07.2017 and promptly thereafter the appeal had been filed. The delay has occurred on account of these peculiar facts which could never be argued before the said authority as no opportunity of being heard had been granted.
The Ld. Sr. DR considering the record agreed that apparently no opportunity of being heard has been provided. Addressing the evidence, it was his submission that may be the affidavit of the Counsel is also necessary who has advised her to apply for a digital signature. The issue may be remanded.
The Ld. AR also submitted that the assessee had not raised a ground challenging the reopening before the CIT(A) which is raised in the present proceedings. Accordingly, he sought permission that the said ground may also be remanded.
I have heard the submissions and perused the material on record. On a consideration of the peculiar facts and circumstances of the present case, I am of the view that the decision making process followed by the CIT(A) is not in conformity with the settled legal position. In case the CIT(A) was convinced that on limitation an adverse view was to framed then it was incumbent upon the said authority to at least grant an opportunity of being heard to the assessee before the passing of the Order. Had such an opportunity been provided the assessee would have been in a position to make good its explanation by way of evidences etc. which was presumed to be found wanting. For want of this opportunity, the order cannot be upheld. Accordingly, for the reasons given hereinabove, the impugned Order is set aside back to the file of the CIT(A) with the direction to pass a speaking Order in accordance with law after giving the assessee a reasonable opportunity of being heard. While so directing it is noted that the assessee has raised a ground challenging the reopening which had not been raised before the CIT(A). It goes without saying
ITA No.:- 1400/Del/2019 Sunita Devi. that jurisdictional issue can be raised by the assessee at any time. The said issue is also remanded back to the CIT(A) with the direction to pass a speaking Order in accordance with law after providing a reasonable opportunity of being heard. Said Order was pronounced on the open Court at the time of hearing itself. 8. In the result, the appeal of the Assessee is allowed for statistical purposes. Sd/- Sd/- (DIVA SINGH) JUDICIAL MEMBER Dated: 125.06.2019 Bidhan / AG(Chd)/Poonam(CHD)