DWARKESH & CO.,SURAT vs. ITO, WARD- 2(3)(1), SURAT
Facts
The assessee filed an appeal against the order of the CIT(A) which had dismissed the appeal for non-compliance. The appeal was filed with a delay of 308 days. The assessee claimed the delay was due to incorrect email addresses being used for communication by the CIT(A), leading to the assessee's lack of awareness about the proceedings.
Held
The Tribunal acknowledged that the delay in filing the appeal was due to circumstances beyond the assessee's control, specifically the incorrect communication of notices. Therefore, the delay was condoned. The Tribunal set aside the order of the CIT(A) and remitted the matter back for a de novo adjudication.
Key Issues
Whether the delay in filing the appeal should be condoned due to incorrect email communication by the appellate authority, and whether a de novo adjudication is warranted.
Sections Cited
145(1), 143(2), 142(1), 144, 250, 271(1)(c), 253(3)
AI-generated summary — verify with the full judgment below
Before: MS. SUCHITRA RAGHUNATH KAMBLE & SHRI BIJAYANANDA PRUSETH
IN THE INCOME-TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE MS. SUCHITRA RAGHUNATH KAMBLE, JUDICIAL MEMBER & SHRI BIJAYANANDA PRUSETH, ACCOUNTANT MEMBER आयकर अपील सं./ITA No.61/SRT/2025 Assessment Year: 2015-16 (Hybrid hearing) Dwarkesh & Co. Income Tax Officer Ward-2(3)(1), बनाम/ 19, Radheyshyam Society, Surat, Aayakar Bhawan, Surat-395 Vs. Opp. Gopinath Complex, 001 Mota Varachha, Surat- 394 101 �थायीलेखासं./जीआइआरसं./PAN/GIR No: AAGFD 7120 G (अपीलाथ�/Appellant) (��थ� /Respondent)
िनधार्िरती की ओर से /Appellant by Shri P.M.Jagasheth, CA राज�व की ओर से /Respondent by Ms. Namita Patel, Sr-DR सुनवाई की तारीख/Date of Hearing 25/08/2025 उ�घोषणा की तारीख/Date of Pronouncement 26/09/2025 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 18.01.2024
by the National Faceless Appeal Centre (NFAC), Delhi/Commissioner of
Income-tax (Appeals) [in short ‘Ld. CIT(A)’] for the Assessment Year (AY) 2015-
16, which in turn arises out of assessment order passed by Assessing Officer (in
short, ‘AO’) u/s 143(3) of the Act dated 22.12.2017.
Grounds of appeal raised by the assessee are as under:
On the facts and in the circumstances of the case as well as the law on the subject, the Ld. CIT(A) has erred in confirming the action of the Assessing Officer in rejecting the books of account u/s.145(1) of the Income tax Act, 1961.
ITA No.61/Srt/2025 A.Y 14-15 Dwarkesh & Co.
On the facts and in the circumstances of the case as well as the law on the subject, the Ld. CIT(A) has erred in confirming the action of the AO in making addition of Rs.85,85,684/- on account of total expenditure debited to profit and loss account without considering the material available on records.
On the facts and in the circumstances of the case as well as the law on the subject, the Ld. CIT(A) has erred in confirming the action of the AO in considering the all the expenditure as non genuine.
On the facts and in the circumstances of the case as well as the law on the subject, the Ld. CIT(A) has erred in confirming the action of the AO not considering the fact that the net profit with interest and remuneration to partners, show is above 8 percent of the gross receipts.
On the facts and in the circumstances of the case as well as the law on the subject, the Ld. CIT(A) has erred in confirming the action of the AO i initiating penalty u/s.271(1)(c) of the Act.
On the facts and in the circumstances of the case as well as the law on the subject, the Ld. CIT(A) has not offered adequate opportunities to hear, hence, the case may please be set aside and restored back to the CIT(A) or AO for sake of the interest of natural justice.
It is, therefore, prayed that the above addition may please be deleted as learned members of the tribunal may deem it proper.”
The appeal filed by the assessee is barred by limitation by 308 days in
terms of provisions of section 253(3) of the Act. The assessee has filed an
affidavit giving reasons for delay in filing the appeal before the Tribunal. The
assessee submitted that during the filing of appeal before CIT(A), his
consultant had clearly mentioned the Email ID: ca.mihirthakkar@gmail.com for
communication, however, during appellate proceedings before CIT(A), all
notices for hearing were issued on Email ID: jodhani.ashok0677@gmail.com
and jodhani.ashok@gmail.com, which had been created by his old tax
consultant for filing of return of income only and was not used for any
correspondence for long time. The appellant was unaware of dismissal of
ITA No.61/Srt/2025 A.Y 14-15 Dwarkesh & Co.
appeal by CIT(A), NFAC, Delhi. Besides, assessee was not informed about the
aforesaid hearing notices and order of CIT(A) by his old consultant due to
which he could not file second appeal before the Tribunal, in stipulated time.
Subsequently, when he came to know about the CIT(A)'s order, then he
immediately downloaded the same and filed appeal before this Tribunal. The
appellant submitted that the delay in filing appeal was neither wilful nor
deliberate, but due to the circumstances beyond his control. He requested that
in the interest of justice, the delay may be condoned, and the appeal may be
decided on merit.
On the other hand, learned Senior Departmental Representative (ld. Sr.
DR) for the revenue submitted that assessee has failed to offer sufficient cause
for the delay, hence, delay should not be condoned. She, however, submitted
that the Bench may decide the preliminary issue as it thinks fit.
We have heard both the parties on this preliminary issue of delay in
filing appeal. In the affidavit, it is submitted that all notices issued by CIT(A)
was sent on email id of assessee's previous tax consultant and not in the email
id given in Form-35. Considering all these facts, we find that assessee was
unaware of the proceedings so that he was unable to file appeal before the
Tribunal in time. Hence, the reasons given in the affidavit for condonation of
delay are reasonable and the same would constitute sufficient cause for the
delay in filing this appeal. We, therefore, condone the delay and admit the
appeal for hearing in the interest of justice.
ITA No.61/Srt/2025 A.Y 14-15 Dwarkesh & Co.
Facts of the case in brief are that the assessee filed his e-return of
income for the AY 2015-16 on 24.10.2015 by declaring total income at
Rs.47,500/-. The case of the assessee was selected for scrutiny through CASS
and the reason for scrutiny selection was 'Low income compared to large
commission receipts'. Notices u/s.143(2) and 142(1) of the Act were issued to
the assessee during the assessment proceedings, calling for details on relevant
issues. In compliance, assessee could not furnish necessary details/documents
except for copy of ROI, computation of income, balance sheet, bank statement
and partnership deed. The AO show caused as to why expenditure of
Rs.85,85,684/- as claimed in the profit and loss account should not be
disallowed and added to his total income for the year under consideration. The
However, the assessee did not submit the required details despite of ample
opportunities provided to him. In view of the same, the aforesaid expenditure
of Rs.85,85,684/- was disallowed and added to the total income of the
assessee. The AO passed his best judgment u/s.144 of the Act wherein total
income of the assessee was determined at Rs.86,33,180/-. Aggrieved by the
disallowance made by AO, the assessee filed an appeal before CIT(A).
During appellate proceeding, several notices were issued by CIT(A) with
the request to furnish necessary details relating to grounds of appeal.
However, appellant did not reply to the aforesaid notices. The CIT(A) observed
that non-compliance to these notices shows that appellant was not interested
in pursuing his appeal. According to CIT(A), the nature of expenses disallowed
ITA No.61/Srt/2025 A.Y 14-15 Dwarkesh & Co.
being indirect expenses, could have been easily justified by the assessee by
producing supporting documents. However, the same were neither produced
before the AO nor appellant had tried to make amends during the appellate
proceedings. Therefore, the CIT(A) dismissed the appeal of the assessee.
Aggrieved by the order of Ld. CIT(A), the assessee has filed present
appeal before the Tribunal. The Ld. AR of the assessee submitted that the
assessee was not given adequate opportunity of hearing by the CIT(A). He
further submitted that the CIT(A) has passed the order u/s 250 of the Act on
18.01.2024 without properly hearing the assessee. The assessee submitted
that during the filing of appeal before CIT(A), his consultant had clearly
mentioned the Email ID: ca.mihirthakkar@gmail.com for communication,
however, during appellate proceedings before CIT(A), all notices for hearing
were issued on Email ID: jodhani.ashok0677@gmail.com and
jodhani.ashok@gmail.com, which was created by his old tax consultant for
filing of return of income only and was not used for any correspondence for
long time. Besides, assessee was not informed about the aforesaid hearing
notices by his old consultant due to which he could not properly represent his
case before CIT(A). According to Ld. AR, adequate opportunity of hearing was
not given to the assessee, therefore, it was requested that one more
opportunity should be given to the assessee to plead his case before the
CIT(A).
ITA No.61/Srt/2025 A.Y 14-15 Dwarkesh & Co.
On the other hand, Ld. Sr-DR for the revenue submitted that assessee
was negligent and careless during the appellate proceedings; hence, appeal of
the assessee should be dismissed.
We have heard both the parties and perused the materials available on
record. It is an undisputed fact that the assessee has been non-cooperative to
the statutory notices and the show cause notice issued to him by the AO. In
spite of being ample opportunities, assessee failed to furnish cogent
reasons/documentary evidence in response to notices issued by CIT(A). The AR
submitted that notices were sent on wrong email id due to which appellant
could file reply and supporting documents. Considering the peculiar facts of
the case, we are of the view that the principles of natural justice would call for
giving another opportunity of hearing to the assessee. Accordingly, we hold
that the interests of justice would be met in case the CIT(A) re-adjudication the
entire issue afresh subject to payment of cost of Rs.5,000/- (Rupees five
thousand only) by the assessee to the credit of the “PM National Relief Fund”
within three weeks from receipt of this order. Subject to payment of above
cost, we set aside the order of CIT(A) and remit the matter back to the file of
CIT(A) with a direction to pass de novo appellate order in accordance with law
after granting adequate opportunity of hearing to the assessee. The assessee is
directed to be more vigilant and diligent and to furnish all details and
explanations as needed by the CIT(A) by not seeking adjournment without
ITA No.61/Srt/2025 A.Y 14-15 Dwarkesh & Co. valid reasons. With these directions, the grounds of appeal raised by the assessee are allowed for statistical purposes. 11. In the result, appeal of the assessee is allowed for statistical purposes.
Order pronounced in accordance with Rule 34 of ITAT Rules, 1963 on 26/09/2025 in the open court. Sd/- Sd/- (SUCHITRA R KAMBLE) (BIJAYANANDA PRUSETH) �याियक सद�य/JUDICIAL MEMBER लेखा सद�य/ ACCOUNTANT MEMBER सूरत /Surat िदनांक/ Date: 26/09/2025 Dkp Outsourcing Sr.P.S* आदेश की प्रितिलिप अग्रेिषत/ Copy of the order forwarded to : अपीलाथीर्/ The Appellant प्र�यथीर्/ The Respondent आयकर आयुक्त/ CIT आयकर आयुक्त (अपील)/ The CIT(A) िवभागीय प्रितिनिध, आयकर अपीलीय आिधकरण, सूरत/ DR, ITAT, SURAT गाडर् फाईल/ Guard File By order/आदेश से, // True Copy // सहायक पंजीकार आयकर अपीलीय अिधकरण, सूरत
