JYOTSANABEN CHINUBHAI PATEL,AHMEDABAD vs. THE ITO, WARD-7(2)(2), AHMEDABAD

At the outset, we note that the order of the learned CIT-A was served upon the assessee dated 11-03-2021 but the appeal was presented before the Tribunal against the order of the learned CIT-A dated 31-05-2021 with the delay about 491 days. It was explained by the learned AR that the appeal has been filed within the extended time as provided by the Hon’ble Supreme Court in the MA No. 665 of 221 Cognizance for Extension of Limitation, reported in [2022] 134 taxmann.com 307 (SC). Accordingly, the learned AR prayed for the admission of the appeal filed by the assessee. On the other hand, the learned DR has not controverted the prayer made by the learned AR for the assessee.

Heard the rival contentions of both the parties and perused the materials available on record. The Hon’ble Supreme Court, suo-motu in the matter cited above, has observed as under: 8. Therefore, we dispose of the M.A. No. 665 of 2021 with the following directions: - I. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15-3-2020 till 2-10-2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15-3-2021, if any, shall become available with effect from 3-10-2021. II. In cases where the limitation would have expired during the period between 15-3-2020 till 2- 10-2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 3-10-2021. In the event the actual balance period of limitation remaining, with effect from 3-10-2021, is greater than 90 days, that longer period shall apply. III. The period from 15-3-2020 till 2-10-2021 shall also stand excluded in computing the periods prescribed under sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.

The case of the assessee falls within the limitation period extended by the Hon’ble Supreme Court as discussed above. Accordingly, we condone the delay occurred in filing the appeal by the assessee and proceed to adjudicate the issue on merit.

The issue raised by the assessee is that the learned CIT-A erred in confirming the order of the AO by sustaining the addition of ₹ 14,04,748.00 on estimated basis. At the outset, we note that there was a delay in filing the appeal by the assessee before the learned CIT-A for 118 days. The assessee furnished the affidavit explaining the reasons for the delay in filing the appeal but the learned CIT-A was not convinced. Thus, the learned CIT did not admit the appeal of the assessee and accordingly dismissed the same. It is also important to note that the assessee has also not appeared before the AO during the assessment proceedings and therefore the AO framed the assessment ex parte to the assessee.

Now the learned AR for the assessee before us submitted that there was the reasonable cause for non-appearance before the learned CIT-A as discussed in the affidavit which has not been disbelieved. Therefore, the learned CIT-A should have admitted the appeal filed by the assessee for adjudication on merit after condoning the delay. Thus it was prayed before us to provide direction to the learned CIT-A to admit the appeal for adjudication on merit.

On the contrary, the learned DR before us vehemently supported the order of the authorities below.

Heard the rival contentions of both the parties and perused the materials available on record. There are enough judicial precedents wherein it was canvassed to prefer the substantial justice over the procedural lapses. On perusal of the affidavit filed by the assessee, it was found that the assessee is a lady and a widow, having 64 years of age and simultaneously is also having confusion with her own son and the daughter-in-law. All these facts have not been negated by the learned CIT-A based on cogent materials. But the learned CIT-A did not consider the reasons given in the affidavit as sufficient cause which prevented the assessee in filing the appeal in time despite having received all the necessary notices/orders from the income tax Department.

In the result, the appeal filed by the assessee is allowed for statistical purposes.