SURENDRABA RAGHUVIRSINH CHUDASAMA,RAJKOT vs. THE INCOME TAX OFFICER, WARD-3(1)(1), RAJKOT

We have heard both the parties on this preliminary issue. We find that, in addition to the mistake of the son of the assessee, there was a mistake of the advocate of the assessee, in accessing the portal of the Income tax Department to know the status of the assessee`s appeal. We note that there was a presence of SurendrabaRaghuvirsinh Chudasama (AY :2012-13) 4 the assessee, before the assessing officer and the assessee submitted the required documents and details before the assessing officer, and assessment order was framed under section 143(3) r.w.s 147 of the Income tax Act, therefore, it cannot be said that assessee was not effectively pursuing the appeal. Therefore, ld.Counsel for the assessee contended that delay may condoned, and appeal may be heard on merit.While considering a delay in filing the appeal, the Apex Court in the case of Collector, Land Acquisition v. Mst. Katiji and Ors. (167 ITR 471) laid down six principles. For the purpose of convenience, the principles laid down by the Apex Court are reproduced hereunder: (1) Ordinarily, a litigant does not stand to benefit by lodging an appeal late (2) Refusing to condone delay can result in a meritorious' matter being thrown at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. (3) Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational, commonsense and pragmatic manner. (4) When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay. (5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. (6) It must be grasped that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Considering, above facts and circumstances, we note that mistake of an advocate of the assessee, may be considered a sufficient cause to condone the delay. Reliance is also placed on the decision of I.T.A.T., 'C' Bench, Kolkata in the case of M/s. Garg Bros. Pvt. Ltd. & Others vs. DCIT [ITA Nos.2519 to 2521/Kol/2017, order dated 18.04.2018], wherein under similar set of facts and SurendrabaRaghuvirsinh Chudasama (AY :2012-13) 5 reasons, the Hon'ble Tribunal was pleased to condone the delay of 211 days by holding as under: "3. We have heard both the parties on this preliminary issue. Having regard to the reasons given in the application for condonation of delay, we are of the considered opinion that assessee was under a bona fide belief that the impugned order of Pr. CIT was not appealable before this Tribunal since they were not advised by their Tax Consultants about this legal right. Later on, when a Senior Lawyer advised them to file an appeal, the assessees immediately took steps to file the appeals. Therefore, the delay caused. We note that delay was occurred because of the wrong advice of the Tax Professional for which assessees cannot be penalized. For the ends of justice, we condone the delay and admit the appeal for hearing.

We note that the reasons given in the affidavit for condonation of delay were convincing and these reasons would constitute reasonable and sufficient cause for the delay in filing this appeal. Having heard both the parties and after having gone through the affidavit as well the delay condonation, application, we are of the view that in the interest of justice, the delay deserves to be condoned. We, accordingly, condone the delay.

We have heard both the parties on merit. We note that in the assessee’s case under consideration, the assessment was carried out u/s 143(3)r.w.s. 147 of the Act and the impugned order passed by the ld. CIT(A), is an ex parte order and non-speaking order, therefore, we do not wish to make any comments on the merits of the grounds raised by the assessee.

The ld. DR for the Revenue debarred from objecting the stand of the ld. Counsel, if the matter is restored back to the file of the ld. CIT (A) for fresh adjudication.

Considering the above facts, we note that assessee has not given sufficient opportunity of being heard and could not plead his case successfully before the SurendrabaRaghuvirsinh Chudasama (AY :2012-13) 6 ld. CIT(A). We note that the ld. CIT(A) did not discuss the assessee’s case on merits based on the material available before him, hence it is a violation of principle of natural justice. We note that it is settled law that principles of natural justice and fair play require that the affected party is granted sufficient opportunity of being heard to contest his case. Therefore, without delving much deeper into the merits of the case, in the interest of justice, we restore the matter back to the file of Ld. CIT(A) for de novo adjudication and pass a speaking order after affording sufficient opportunity of being heard to the assessee, who in turn, is also directed to contest his stand forthwith. Therefore, we deem it fit and proper to set aside the order of the ld. CIT(A) and remit the matter back to the file of the ld. CIT(A) to adjudicate the issue afresh on merits. For statistical purposes, the appeal of the assessee is treated as allowed.

In the result, the appeal of the assessee is allowed for statistical purposes.