Loading judgment…
Facts
The assessee filed his return for AY 2012-13, which was originally assessed. The case was later reopened, and since the assessee did not file a return or attend proceedings, the AO passed an ex parte order. The assessee's appeal before the CIT(A) suffered a delay of 70 days, which was not condoned, leading to the dismissal of the appeal.
Held
The Tribunal noted that the CIT(A) passed the order without hearing the assessee and without condoning the delay, violating principles of natural justice. The Tribunal also observed that a similar delay in the case of the assessee's son was condoned and that the ITAT had ruled in favor of the son.
Key Issues
Whether the CIT(A) erred in dismissing the appeal without condoning the delay and without providing a hearing, and whether the re-opening of assessment and subsequent additions were justified.
Sections Cited
250, 144, 147, 148, 143(1), 154, 249(3)
AI-generated summary — verify with the full judgment below
Before: SHRI SANJAY GARG & SHRI BIJAYANANDA PRUSETH
आदेश / O R D E R PER BIJAYANANDA PRUSETH, AM: This appeal by the assessee emanates from the order passed under section 250 of the Income-tax Act, 1961 (in short, ‘the Act’), dated 16.01.2024 by the National Faceless Appeal Centre, Delhi/ Commissioner of Income-tax (Appeals) [in short, ‘CIT(A)’] for the assessment year (AY) 2012-13, which in turn arises out of assessment order passed by Assessing Officer (in short, ‘AO’) u/s 144 r.w.s. 147 of the Act dated 11.09.2017. 2. Grounds of appeal raised by the assessee are as under: “1. On the facts and in circumstances of the case as well as law on the subject, the Learned CIT(A) has erred in not condoning the delay of 70 days in filing of appeal before Ld. CIT(A).
ITA No.281/Srt/2025 A.Y 12-13 Kirtikumar N Shah
On the facts and in circumstances of the case as well as law on the subject, the Learned CIT(A) has erred in dismissing the appeal without passing speaking order. 3. On the facts and in circumstances of the case as well as law on the subject, the Learned CIT(A) has erred in confirming the action of Assessing Officer in re- opening assessment u/s 147 by issuing notice u/s 148 of the I.T. Act, 1961. 4. On the facts and in circumstances of the case as well as law on the subject, the Learned CIT(A) has erred in confirming the action of Assessing Officer by sustaining the addition of Rs.57,07,000/- on account of alleged suppression of job receipts and Rs.9,37,552/- on account of alleged claim of excess depreciation. 5. The learned Assessing Officer ought to have passed an order u/s 154 for subsequent years rectifying the intimation made u/s 143(1) to allow depreciation for next year on the closing WDV as computed by Assessing Officer i.e., Rs.11,03,302/-. 6. It is therefore prayed that above addition made by the Assessing Office and confirmed by the learned CIT(A) may please be deleted. 7. Appellant craves leave to add or alter or delete any of the ground or grounds of appeal at the time of hearing before your honour.”
Brief facts of the present case are that assessee filed his return of income for AY 2012-13 on 29.09.2012 declaring total income at Rs.23,63,780/-. The case was originally assessed u/s 143(3) of the Act determining total income at Rs.24,09,150/-. Subsequently, the case was reopened by issue of notice u/s 148 of the Act on 31.03.2017. The assessee did not file return nor attended the proceedings before AO. Due to non-compliance by assessee, the AO passed order u/s 144 of the Act on 11.09.2017 by making addition of Rs.57,07,000/- towards suppression of job receipts and Rs.9,37,552/- for claim of excess depreciation. The total income was determined at Rs.90,53,700/- as against
ITA No.281/Srt/2025 A.Y 12-13 Kirtikumar N Shah returned income of Rs.24,09,150/-. Aggrieved by the addition made by AO, assessee filed appeal before CIT(A).
There was delay of 70 days in filing appeal before the CIT(A). The CIT(A) has observed that the appellant did not furnish any reasonable and sufficient cause for the delay in filing the appeal before him. He held that the conditions laid down u/s 249(3) are not fulfilled and there was no sufficient cause for the delay in filing of appeal. Therefore, he dismissed the appeal.
Aggrieved, the appellant has filed present appeal before the Tribunal. The Ld. AR has filed paper book giving copies of various details filed before the AO. He submitted that the CIT(A) passed the order without waiting for the remand report and before within the first compliance date of remand proceedings and without considering the submission filed on merit. In Form-35, the appellant had mentioned that the delay was owning to personal difficulties. Similar addition had been made in case of son of appellant, Shri Dhaval Kiritbhai Shah and the delay was condoned by the CIT(A). The Department filed further appeal before the ITAT which was dismissed by the Tribunal in ITA No.147/SRT/2020 dated 25.05.2022. In case of the assessee, the appeal was migrated to NFAC on 25.09.2020. The assessee filed various submissions before the NFAC/CIT(A) and the matter was remanded to the AO. Even before the first due date of compliance of the remand proceedings, the CIT(A) passed the order u/s 250 of the Act. The Ld. AR, therefore, requested that the order of CIT(A) may be set
ITA No.281/Srt/2025 A.Y 12-13 Kirtikumar N Shah aside in the interest of justice and one more opportunity should be given to the appellant to argue the case on merit.
On the other hand, Ld. Sr-DR for the revenue supported the orders of lower authorities. He would, however, have no objection if the matter is remanded back to the file CIT(A) or AO.
We have heard both the parties and perused the materials on record. There is no dispute regarding the fact that there was delay of 70 days in filing the appeal before the CIT(A). The appellate proceedings were originally in physical mode before the CIT(A), which was subsequently migrated to the NFAC. As contended by the Ld. AR, the assessee had filed various submission before the NFAC/CIT(A), who had called for a remand report from the AO. Even before the 1st due date of compliance in the remand proceedings, the NFAC/CIT(A) passed the order u/s 250 of the Act by dismissing the appeal without condoning the delay. It is, therefore, clear that the order was passed without hearing the assessee, in violation of principles of natural justice. The AO has also passed an ex parte order u/s 144 of the Act. The Ld. AR further submitted that under similar circumstances, the delay in filing appeal in case of his son was condoned and the ITAT has also decided the issue in favour of his son. Considering the facts discussed above, we deem it proper to set aside the order of CIT(A) and restored the matter to the file of AO for de novo order after granting adequate and fair
ITA No.281/Srt/2025 A.Y 12-13 Kirtikumar N Shah opportunity of being heard to the assessee. Accordingly, appeal of assessee is allowed for statistical purposes.
In the result, appeal of the assessee is allowed for statistical purposes.
Order pronounced in accordance with Rule 34 of ITAT Rules, 1963 on 10/11/2025 in the open court.
Sd/- Sd/- (SANJAY GARG) (BIJAYANANDA PRUSETH) �याियक सद�य/JUDICIAL MEMBER लेखा सद�य/ ACCOUNTANT MEMBER सूरत /Surat �दनांक/ Date: 10/11/2025 Dkp Outsourcing Sr.P.S* आदेश क� �ितिलिप अ�ेिषत/ Copy of the order forwarded to : अपीलाथ�/ The Appellant ��यथ�/ The Respondent आयकर आयु�/ CIT आयकर आयु� (अपील)/ The CIT(A) िवभागीय �ितिनिध, आयकर अपीलीय आिधकरण, सूरत/ DR, ITAT, SURAT गाड� फाईल/ Guard File
By order/आदेश से, // True Copy // सहायक पंजीकार आयकर अपील�य अ�धकरण, सूरत