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Facts
The assessee filed an appeal late by 216 days due to a misunderstanding regarding the correct order to appeal against. The Assessing Officer added Rs. 13,57,050/- and Rs. 94,500/- as unexplained income. The CIT(A) dismissed the appeal for non-prosecution and also on merits.
Held
The Tribunal condoned the delay in filing the appeal, finding it to be unintentional and due to lack of guidance. The Tribunal set aside the order of the CIT(A) and remitted the matter back for fresh adjudication, granting the assessee an opportunity to present their case.
Key Issues
Whether the delay in filing the appeal can be condoned, and whether the CIT(A) erred in dismissing the appeal for non-prosecution and on merits without adequate opportunity to the assessee.
Sections Cited
253(3), 133A, 148, 143(2), 142(1)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, SURAT BENCH, SURAT
Before: SHRI SANJAY GARG & SHRI BIJAYANANDA PRUSETH
आदेश / O R D E R
PER BIJAYANANDA PRUSETH, AM:
This appeal emanates from the order dated 08.05.2024 passed by the learned Commissioner of Income-tax (Appeals)-11, Ahmedabad [in short, “CIT(A)”] for the assessment year (AY) 2012-13.
The grounds of appeal
raised by the assessee are as under: “1. The Ld CIT(A) has erred and was not just and proper on the facts of the case and in law in confirming the addition of Rs.13,57,000/- being unexplained and unaccounted income.
2. The Ld CIT(A) has erred and was not just and proper on the facts of the case and in law in confirming the addition of Rs.94,500/-.
3. PRAYER 3.1 The additions may kindly be deleted. 3.2 Personal hearing may be granted. 3.3 any other relief that your honours may deem fit may be granted.
2012-13 Jayesh Dolatbhai Patel 4. The assessee craves leave to add, amend, modify alter or delete any of the grounds at the time of hearing.”
The appeal filed by the assessee is late by 216 days in terms of provisions of section 253(3) of the Act. The assessee has filed affidavit giving reasons for delay in filing appeal before this Tribunal. In the affidavit, the assessee submitted that he received only the recovery notice from Department and not the original order. Thereafter, he requested JAO to provide a copy of the appellate order. He submitted that the appeal was prepared by the concerned CA against the penalty order and not against the quantum order. He came to know about the mistake when the hearing of the penalty was listed on 03.03.2025. His counsel discussed the matter and advised him to file appeal before the Tribunal. The delay in filing the appeal was inadvertent and unintentional. The learned Authorized Representative (ld. AR) submitted that the delay was unintentional, bonafide and assessee was prevented by sufficient cause. He requested that the delay may be condoned in the interest of justice.
On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the revenue submitted that the Tribunal may decide the matter as it thinks fit.
We have considered the reasons given by the ld. AR and perused the accompanying documents along with the affidavit. Though the appellant was not alert and diligent, the delay in filing the appeal was not deliberate and intentional on the part of assessee. There was lack of guidance from his earlier tax consultant, who was looking after his tax matter. Moreover, the assessee 2012-13 Jayesh Dolatbhai Patel was not going to be benefitted by filling appeal belatedly. It is now fairly settled that when technical consideration and cause of substantial justice are pitted against each other, the cause of substantial justice may be preferred. Hence, delays in filling appeal are condoned and admitted for hearing.
The facts of the case are that there was a survey u/s 133A of the Act in case of the assessee on 10.12.2016. One loose paper folder bearing identification mark BF-8 was impounded during the survey. Thereafter, notice u/s 148 was issued on 29.03.2019. The assessee filed return in response to notice u/s 148 of the Act on 29.04.2019, declaring total income of Rs.8,77,040/-. Subsequently, the Assessing Officer (in short, ‘AO’) issued notices u/s 143(2) and 142(1) of the Act and called for various details. He found that Rs.13,57,050/- pertain to sale of goods of assessee, which are not recorded in the books of account. The explanation of the assessee that these entries are approval sale details and not confirmed sales was not accepted by the AO. Hence, he added Rs.13,57,050/- and income from house rent property of Rs.94,500/-. The total income was determined at Rs.23,28,600/-.
Aggrieved by the order of AO, the assessee filed the appeal before the CIT(A). The CIT(A) issued three notices, which were not responded by the assessee. Hence, he dismissed the appeal for non-prosecution. He also dismissed the appeal on merit by sustaining the findings of the AO. In the result, he dismissed the appeal.
2012-13 Jayesh Dolatbhai Patel 8. Aggrieved by the order of CIT(A), the assessee has filed the appeal before the Tribunal. The learned Authorized Representative (ld. AR) of the assessee submitted that the CIT(A) has passed ex parte order without giving adequate opportunity to the assessee. The AO added the entire sale proceeds of goods instead of estimating income from such sales. The ld. AR submitted that assessee is ready to submit all the details and the matter may be remanded back to the CIT(A) for fresh adjudication.
On the other hand, learned Senior Departmental Representative (ld. Sr. DR) for the revenue submitted that assessee was negligent during the appellate proceedings, hence, appeal of the assessee should be dismissed. However, the Bench may decide as it thinks fit.
We have heard both the parties and perused the materials on record. The ld. AR has argued that the CIT(A) has passed order without giving reasonable and sufficient opportunities of being heard to assessee. The CIT(A) dismissed appeal for non-prosecution and also dismissed on merit by merely relying on the order of AO. Considering the facts and circumstances of the case, we are of the considered view that the assessee deserves one more opportunity to contest its case on merit. In the interests of justice, we set aside the order of CIT(A) and remit the matter back to his file for fresh adjudication in accordance with law after granting adequate opportunity of hearing to assessee. The assessee is directed to be vigilant and to furnish all details and explanation as needed by CIT(A) by not taking adjournment without valid reason. With this 2012-13 Jayesh Dolatbhai Patel direction, the grounds of appeal
raised by the assessee are treated as allowed for statistical purposes.
11. In the result, appeal filed by the assessee is allowed for statistical
8. In the result, appeal filed by the assessee is allowed for statistical purposes. Order pronounced in accordance with Rule 34 of ITAT Rules, 1963 on 24/11/2025 in the open court.