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Facts
The appeals relate to assessment years 2013-14 to 2015-16. The assessee filed appeals before the CIT(A) after a delay of 172 days, which were dismissed in limine. The Assessing Officer had made an addition of Rs. 10.72 Crore on account of transactions in the assessee's bank account.
Held
The Tribunal held that the delay in filing the appeal before the CIT(A) was not intentional or deliberate and condoned the delay. However, since there was non-compliance before the AO and CIT(A), a cost of Rs. 2000/- was imposed in each appeal.
Key Issues
Whether the delay in filing the appeal before the CIT(A) was intentional and whether the matter should be restored to the AO for fresh assessment.
Sections Cited
254(1), 147, 144
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िनधा�रती की ओर से /Assessee by Shri Suresh K. Kabra, CA राज� की ओर से /Revenue by Shri Ritesh Mishra – CIT-DR सुनवाई की तारीख/Date of hearing 12.03.2025 उद्घोषणा की तारीख/Date of 13.03.2025 pronouncement Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This group of three appeal by assessee is directed against the separate orders of National Faceless Appeal Centre, Delhi [for short to as “NFAC/Ld.CIT(A)] all dated 30/07/2024 for assessment year (AY) 2013-14 to 2015-16. The ld CIT(A) dismissed all the appeal in limine by not admitting the appeals. In all appeals the assessee has raised similar grounds of appeal
, thus, all the appeals were clubbed heard together and are decided by common order to avoid the conflicting decisions. For appreciation of facts, the facts in appeal for AY 2013- 14 are treated as lead case.
2. Rival submissions of both the parties have been heard and record perused. The Ld. Authorized Representative (Ld.AR) of the assessee submits that ITA No (s) 1005 to 1007/Srt/2024 Janvi Thread Private Limited (AY 2013-14 to 2015-16) assessment was completed under section 147 rws 144 of the Act on 25/05/2023. The Assessing Officer (AO) while passing assessment order made addition on account of transaction in bank account. The AO made addition of Rs. 10.72 Crore on account of transaction in various bank account. The assessee could not make compliance during assessment as the business was closed down and entire staff has left. There was no staff to collect old data. The assessee filed appeal before ld CIT(A) on 30.07.2024. There was delay of 172 days in filing appeal as the appeal was to be filed online which require digital signature. The digital created / obtained on 15.12.2023 and appeal was filed immediately. The assessee in explained such delay, as has been recorded by ld CIT(A). The delay in filing appeal was not intentional or deliberate but due to unavoidable reasons. The Ld. CIT(A) not condone the delay and dismissed appeal as unadmitted. Resultantly, the addition made by Assessing Officer was confirmed. The Ld. AR of the assessee submits that there was reasonable cause for condonation of delay. The ld AR of the assessee submits that there was no intentional or deliberate delay in filing appeal ld CIT(A). The delay may be condoned and the matter may be restored back to the file of AO for passing assessment order afresh. He undertakes on behalf of assessee to make compliance. The assessee is interested to peruse his case on merit. The Ld. AR of the assessee submits that assessee has a good case on merit and is likely to succeeds, if one more opportunity is allowed to assessee to contest his case before AO. The department will not lose their right to collect legitimate tax, if it is lawfully leviable on the assessee. He made specific prayer that matter may be restored back to the file of Assessing Officer instead of ITA No (s) 1005 to 1007/Srt/2024 Janvi Thread Private Limited (AY 2013-14 to 2015-16) Ld.CIT(A) to avoid the long drawn procedure of remand report, in that event of filing some evidence or submission.
3. On the other hand, Ld. Commissioner of Income tax- Departmental Representative (Ld. CIT-DR) for the Revenue submits that the assessee has not contested even during assessment proceedings. There is huge addition on account of cash deposits as well as other credits in the bank account of the assessee. Sufficient opportunities were allowed to assessee by AO, but the assessee remained non-compliance. Thus, assessee does not deserve any further opportunity or leniency. Even if, the Bench is of the opinion that assessee deserves any further opportunity, matter may be restored back only subject to payment of cost.
4. We have considered the rival submissions of both the parties and have gone through order of lower authorities carefully. We find that the Assessing Officer passed assessment order under section 144/147 on 20.05.2023 by taking view that despite allowing opportunity. The AO made addition of transaction in various bank account. The Ld. CIT(A) confirmed the action of AO by not condoning the delay in filing appeal before him, resultantly, the appeal was dismissed in limine. Now, before us, the Ld.AR of the assessee has explained the delay in filing appeal before Ld.CIT(A) was not intentional or deliberate. On considering the contention of Ld. AR of the assessee and the fact that there was delay of only 172 days in filing appeal before CIT(A). Though, the explanation offered by assessee is general, yet we find that delay is not intentional, rather the assessee is interested in pursuing their appeal. We are conscious of the facts that in a series of decisions by higher courts that client / ITA No (s) 1005 to 1007/Srt/2024 Janvi Thread Private Limited (AY 2013-14 to 2015-16) assessee should not be suffered due to negligent act of his adviser or consultant. The Hon’ble Jurisdictional High Court in Multibase India Ltd Vs ITO (2018) 93 taxmann.com 204 (Gujarat) and in Jayvantsinh N Vaghela VS ITO (2013) 40 taxmann.com 491 (Gujarat) held that unless the delay is gross or intentional, mala fide or deliberate, delay may be condoned. Hon’ble Apex Court in a celebrated decision in Collector Land Acquisition Vs Mst Katiji (1987) (2) SCC-107 held that there is no presumption under law the delay in filing appeal is intentional. The parties do not get any benefit in filing appeal belatedly, rather there is chance that the delay may not be condoned. It was further held that when technical consideration and cause of substantial justice and pitted against each other, the cause of substantial justice may be preferred. Thus, considering overall facts, material placed before us and submission of Ld.AR of the assessee, we find that there was no intentional or deliberate delay in filing appeal before CIT(A). Hence, delay of 172 days in filing appeal before CIT(A) is condoned. However, there was non-compliance before the AO, as well as no compliance was made before ld CIT(A), therefore, we deem it appropriate to impose cost of Rs. 2000/- (two thousand rupee) in each appeal. The cost shall be deposited with Surat District Legal Aid and advice Board/ Committee.
So far as merits of the case is concerned, we find that both the lower authorities have passed the order ex parte proceedings. Keeping in view the peculiar facts of the case, we find that it is a fit case to restore the matter back to the file of AO to pass the assessment order afresh. Needless to direct that before passing order afresh, the AO shall provide reasonable opportunity to the assessee. The assessee/his AR is also directed to be more vigilant and to make timely ITA No (s) 1005 to 1007/Srt/2024 Janvi Thread Private Limited (AY 2013-14 to 2015-16) compliance of the notice issued by AO. With these directions, the grounds of appeal
of assessee is allowed for statistical purposes.
6. In the result, the appeal of the assessee is allowed for statistical purposes.
& 1007/Srt/2024 for AY 2014-15 & 2016-17, 7. Considering the facts, that the assessee has raised similar grounds of appeal in both these years as raised in appeal for AY 2013-14, wherein we have condoned the delay in filing appeal before CIT(A), and restored the matter back to the file of AO, thus, following the principals of consistency these appeals are also allowed, with similar direction. In the result, these appeals are also allowed for statistical purpose. Order pronounced in the open court on 13/03/2025.
Sd/- Sd/- (BIJAYANANDA PRUSETH) (PAWAN SINGH) लेखा सद�/Accountant Member �ाियक सद�/Judicial Member सूरत / Surat Dated: 13/03/2025 Self आदेश की �ितिलिप अ�ेिषत/ Copy of the order forwarded to : अपीलाथ�/ The Appellant ��थ�/ The Respondent आयकर आयु�/ CIT िवभागीय �ितिनिध, आयकर अपीलीय आिधकरण, सूरत/ DR, ITAT, SURAT गाड� फाईल/ Guard File // True Copy // By order/आदेश से,
सहायक पंजीकार आयकर अपीलीय अिधकरण, सूरत