BHUVNESH BIMALCHAND JAIN,SURAT vs. ITO, WARD-3(2)(6), SURAT

On the other hand Ld. DR refuted the contents contained in theapplication and requested for dismissal of the same.

After having heard the counsels for both the parties on theapplication for seeking condonation of delay and Bhuvnesh Bimalchand Jain, Surat. considering theentire factual position as explained before us and also keeping inview the principles laid down by Hon'ble Supreme Court in the caseof Land Acquisition Collector Vs MST Katiji and others 1987 AIR 1353 Supreme Court, wherein it has been held that weresubstantial justice is pitted against technicalities of non deliberatedelay, then in that eventuality substantial justice is to be preferred.In our view the principals of advancing substantial justice is ofprime importance. Hence considering the explanation put forth bythe Assessee by justifiably and properly explaining the delaywhich occurred in filing the appeal and construing the expression"sufficient cause" liberally we are inclined to condone the delay in filing the appeal before us. Thereforewe condone the delay andadmit the appeal to be heard on merits.

On going through the case file we noticed that the appeal of the assessee was rejected by Ld. CIT(A) on the ground that the same was not filed within limitation and even application of condonation of delay was not filed. In this regard Ld. AR submitted that there was no delay in filing the appeal before Ld. CIT(A) and moreover Ld. CIT(A) had not provided any opportunity of hearing or show cause notice to the assessee before dismissing the appeal in limine. It was also submitted that Ld. CIT(A) has violated the principles of natural justice.

Be that as it may, without going into the merits of the issues raised by the assessee and taking into consideration the facts narrated before us and while taking a lenient view thatbefore dismissing the appeal of the assessee Ld. CIT(A) ought to have issued show cause notice to the assessee or had accorded opportunity to the assessee for moving application for seeking condonation of delay. Since the order has been passed by Ld. CIT(A) without providing sufficient opportunity to the assessee therefore the same is in violation of principles of natural justice and in our view the rights of the parties cannot be scuttled down in the absence of sufficient opportunity. Therefore we are of the view that the matter needs to be restored back to the file of Ld. CIT(A) for providing opportunity of hearing to the assessee for moving appropriate application or affidavit for seeking condonation of delay if any in case any such application is filed than then in that eventuality the Ld. CIT(A) directed to adjudicate the same on merits in accordance with law.

Before parting, we make it clear that our decision to restore the matter back to the file of the Ld. CIT(A) shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by the Ld. CIT(A) independently in accordance with law.

as the facts and circumstances in this appeal are identical to AY 2012-13(except variance in figures) would apply ‘mutatis mutandis’ for this appeal also. Accordingly, the grounds of appeal of the assessee are allowed for statistical purpose.