CHOUDHARY NARSIRAM,GANDHIDHAM vs. THE INCOME TAX OFFICER WARD-2, GANDHIDHAM, GANDHIDHAM

We have heard both the parties on this preliminary issue. We have gone through the reasons explained by assessee in the respective condonation petition of delay and having regard to the reasons given in the respective petitions for condonation of delay, we are of the considered view that assessee has explained sufficient cause and therefore delay needs to be condoned. Therefore, in the interest of justice, the delay of 18 days in deserve to be condoned and, accordingly, we condone the delay in both appeals and admit both the appeals of the assessee to adjudicate, on merit.

On merit, Ld. Counsel for the assessee submitted that assessee was not aware about the online procedure, therefore he could not appear before the Ld.CIT(A) and Ld. CIT(A) has passed the ex parte order. However, during appellate proceedings, assessee sought adjournment for one month to file the details and documents but on account of mistake committed by the Advocate of the assessee, the assessee could not submit the required details and documents before Ld.CIT(A) and as a result, the ex parte order was passed by Ld.CIT(A). Therefore, Ld. Counsel for the assessee contended that since the assessee wants to submit some more additional evidences to prove his case/claim, therefore one more opportunity may be allowed and matter may be remitted back to the file of Assessing Officer for fresh adjudication.

Learned Sr-DR of the Revenue stated that he did not have any objection, if the matter is remitted back to the file of lower authorities.

We have heard both the parties and gone through materials available on record. We note that ld. CIT(A) has not decided the issue in respect of the ground raised by the assessee in Memo of Appeal as per the mandate of provisions of section 250(6) of the Act. The Ld. Counsel of the assessee requested to set aside the order of CIT(A) and requested the Bench that matter may be remitted back to the file of the Assessing Officer for fresh adjudication, as the assessee wants to file additional evidences and ld. Counsel for the assessee, undertook the responsibility that all the details would be filed before Assessing Officer, if another opportunity is granted to the appellant. The Ld. Sr-DR did not raise any objection, if the matter is restored to the file of Assessing Officer. In view of the above facts, we deem it proper to set aside the order of CIT(A) and restore the matter back to the file of Assessing Officer for fresh adjudication. It is needless to say that assessee will be at liberty to adduce any evidences, as deemed relevant before the Assessing Officer at the time of de novo assessment proceedings, in consequence to this order and the Assessing Officer shall allow the assessee adequate opportunity of being heard and to make relevant submissions, and then pass a speaking order, which is fair and judicious. Accordingly, appeal of assessee, is allowed for statistical purposes.

We note that we have restored the grounds of appeal raised in quantum assessment/ quantum appeal to the file of Assessing Officer, therefore, the penalty imposed u/s 271B will not survive, when the matter in quantum proceedings have been restored to the file of Assessing Officer, the penalty does not have leg to stand. However, the Assessing Officer is given liberty to initiate fresh penalty, in accordance with law. In the result, penalty appeal is also allowed for statistical purposes.

In the combined result, both the appeals of the assessee are allowed for statistical purposes.