SARFARAJ MOHMED BALERA,BHARUCH, GUJARAT vs. INCOME TAX OFFICER WARD 1(5), WARD (), BHARUCH

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ITA 112/SRT/2025Status: DisposedITAT Surat28 November 2025AY 2012-135 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal condoned the delay of 121 days in filing the appeal, finding that the assessee had sufficient cause due to the actions of their tax consultant, who failed to provide access to crucial communications and kept the assessee in the dark regarding proceedings before the Ld. CIT(A). The Tribunal acknowledged that the assessee suffered due to the mistake of their appointed representative. Regarding the merits, the Tribunal noted that while the Ld. CIT(A) issued multiple notices, there was no finding in the impugned order that these notices were properly served on the appellant. Observing the lack of proper service of notices and considering the facts and circumstances, the Tribunal was inclined to set aside the order of the Ld. CIT(A). The matter was remanded back to the file of the Assessing Officer for fresh adjudication after providing an opportunity of hearing to the assessee. The assessee was directed to ensure participation in future hearings and avoid unnecessary adjournments. The issue of the addition under Section 69A was not decided on merits but was to be adjudicated by the AO upon remand.

What were the facts?

The assessee, Sarfaraj Mohmed Balera, filed an appeal against the order of the Ld. Commissioner of Income-tax, Appeal, Addl/JCIT(A), Thane, dated 11.07.2024, for Assessment Year 2012-13. This appeal arose from an assessment order passed by the Assessing Officer (AO) under section 143(3) r.w.s 147 of the Income Tax Act, 1961, on 21.11.2019. The assessee's appeal before the ITAT was filed with a delay of 121 days. The assessee attributed this delay to a lack of knowledge of the CIT(A)'s order, which was allegedly served through an email ID controlled by their tax consultant, and not accessed by the assessee. The AO had reopened the case based on AIR information and made an addition of Rs. 11,86,432/-. The CIT(A) had dismissed the assessee's appeal due to non-compliance with notices.

What were the issues?

1. Whether the appeal filed by the assessee is barred by limitation, and if so, whether the delay of 121 days should be condoned (Question of fact and procedure). - Assessee's contention: The delay was due to the assessee not being aware of the CIT(A)'s order because the communication was sent to an email ID controlled by their tax consultant, which the assessee could not access. The assessee was under the bona fide impression that their tax matters were being handled appropriately. Reliance was placed on the assessee's lack of education regarding e-proceedings and the tax consultant's failure to inform them. - Revenue's contention: The revenue objected to the condonation of delay and prayed for the rejection of the appeal. 2. Whether the addition of Rs. 10,35,403/- made by the Assessing Officer under section 69A of the Income Tax Act is justified (Question of law and fact). - Assessee's contention: The AO erred in invoking Section 148 and Section 69A, and the addition was made without any material on record. The assessment order was non-est in law due to the non-issuance of a mandatory notice under section 143(2) after the section 148 notice. - Revenue's contention: The revenue relied upon the order of the Ld. CIT(A) and did not object to the prayer of the assessee for an opportunity to explain the case before the lower authority.

Which sections of the Income-tax Act were involved?

Section 143(3),Section 147,Section 148,Section 143(2),Section 69A,Section 144,Section 254(1)

AI-generated summary — verify with the full judgment below

िनधा�रती की ओर से /Assessee by Shri Krutarth Desai, CA राज� की ओर से /Revenue by Shri Ajay Uke, Sr-DR सुनवाई की तारीख/Date of hearing 01.09.2025 उद्घोषणा की तारीख/Date of pronouncement 28.11.2025 Order under section 254(1) of Income Tax Act PER DINESH MOHAN SINHA, JUDICIAL MEMBER: This appeal by assessee is directed against the order of Ld. Commissioner of Income-tax, Appeal,Addl/JCIT(A), Thane [for short, “Ld. CIT(A)”] dated 11.07.2024 for the assessment year 2012-13, which in turn arises out of an assessment order passed by the Assessing Officer (in short, “AO”) under section 143(3) r.w.s 147 of Income Tax Act, 1961 (‘the Act’) on 21.11.2019. The assessee has raised the following grounds of appeal:-

“1. The Learned Assessing Officer has erred in invoking provisions of Section 148 of Income Tax Act as the Learned Assessing Officer has not applied his mind to the facts of the case and therefore the assumption of power under section 148 is bad in law.

2.

The impugned assessment ordered is non-est in the eyes of law as the mandatory notice under the provisions of sectino143(2) has not been issued after issuance of notice under section 148 of the Income Tax Act and therefore, the entire assessment proceedings would be void.

3. The Learned Assessing Officer has erred in facts and circumstances of the case and making addition of Rs.10,35,403/- under section 69A of Income Tax Act.

(A.Y.12-13) Sarfaraj M Balera 4. The Learned Assessing Officer has misdirected himself in arriving to conclusion that the appellant is having unexplained money of Rs.10,35,403/- without having any material on record. 5. The Learned Assessing Officer has erred in invoking provision of Section 69A of the Act and therefore no addition could be made. 6. The appellant craves for leave to add or amend or alter any of the grounds of appeal."

2. At the outset Registry of this Tribunal bring to the notice that appeal filed by the assesse is barred by delay of 121 days. The applicant submitted an application for condonation of delay supported by an affidavit. The main reason for the condonation of delay is reproduced below: “2.1 The applicant is an individual and not well educated to understand the nitty- gritty of E Proceedings or faceless assessment and appeal scheme. The appellant has assigned his job of taxation compliance to his tax consultant, who has created a new E Mail ID on the Income Tax Portal, which name belongs to the appellant but in actual controlled and password protected by the tax consultant and the appellant have no access to that e-mail account and therefore, the appellant was not in a position to receive any communication from the Income Tax Department. The E Mail id is of one sarfaraj190485@rediffmail.com, which is not being accessed by the applicant. Therefore, the appellant could not receive any E Mail updates from the Income Tax Department. 2.2 The fact of the appellate order having been passed by the CIT(A) was not in the knowledge of the applicant as it was served through the registered E Mail, which was not being accessed by the appellant. The applicant was under bona fide impression that his income tax related matters are being appropriately taken care of by this tax consultant. The applicant used to ask his tax consultant at regular interval about his tax matters but used to get the reply of normality. Therefore, the applicant was under bon a fide belief that his tax matters are in safe hands.”

The Ld. Counsel of the assessee (AR), stated that because of no order served on the assessee on registered email or on physical mode order is received by the assessee. The assessee came to know about the order dated 11.07.2024. Hence the delay is due to non-receipt of order the assessee hence delay may kindly be condoned.

3.

On the other hand, Ld. D.R. objected the application for condonation of delay and prayed for rejection of the application and the appeal.

4.

We have heard the rival contention of both the parties and find that the assessee could not comply with the notices issued by Ld.CIT(A) because of e-mail of the tax consultant which cannot be accessed by the assessee and assessee was kept in dark by the Tax Consultant about the proceeding going on before Ld. CIT(A). The assessee had suffered because of mistake done by his tax consultant, who appointed to represent the assessee. That there was a sufficient cause for delay in filing the appeal. We are of the view in the above circumstances and in interest of justice we are hereby condone the delay of 121 days in filling the present appeal and decide the appeal on merit.

5.

Brief facts of the case that according to AIR information, case of assessee for the year 2012-13 was reopened by issuing notice u/s 148 of the Act on 29.03.2019 after recording reasons. The AO has issued notice u/s 148 as the notice u/s 142(1) to the assessee. But all the notices were complied with. In the absence of any reply, assessment was completed u/s 144 of the Act (ex parte) on the basis of materials available on record. The addition of Rs.11,86,432/- made by AO. 3

6.

Aggrieved by the order of the AO, the assessee filed an appeal before the Ld.CIT(A). The Ld. CIT(A) has issued 4 notices to the assessee but there was no response by the assessee the appeal was dismissed by Ld. CIT(A). That the assessee filed an appeal against the impugned order of the Ld. CIT(A) dated 11.07.2024 before us.

7.

During the course of argument, the Ld. AR of the assessee submitted that the assessee is an individual and return of income for A.Y 2012-13 and during the year assessee has deposited Rs.11,62,900/- with Bank of Baroda. The Ld. AR prayed before us that one more opportunity may kindly be given to the assessee to explain the case before the lower authority.

8.

On the other hand, Ld. Sr-DR for the revenue, relied upon the order of the Ld. CIT(A) and not objected to the prayer of the Ld. AR.

9.

We have heard both the parties and perused the material available on record and also perused the order of Ld. CIT(A). We find that Ld.CIT(A) has issued 4 notices on 21.01.2021, 23.03.2024, 10,04,2024, & 25.06.2024 and Ld.CIT(A) observed that assessee failed to file the reply of such notices meaning thereby nothing has to be submitted by the appellant. The appellant has negligent and having casual approach for representing his case before the authority. We observe that Ld.CIT(A) has issued notices but there is no finding in the impugned order that notices were properly served on the appellant. After considering the facts and circumstances of the case we (A.Y.12-13) Sarfaraj M Balera are inclined to set aside the order of Ld.CIT(A) and remand this matter back to the file of AO for a fresh adjudication after giving opportunity of hearing to the assessee. The assessee is also directed to 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.

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