RAJESH KANJIBHAI KORIYA,UPLETA vs. THE ITO WARD 1 (2) (2) RAJKOT, RAJKOT

7. The order before CIT(A) and then CIT(A) has not admitted the appeal on the ground of non payment of advance tax.

8. I have no idea whatsoever regarding any communication of CIT(A) nor order of CIT(A) which was passed on 29.1-2024.

9. I came to know regarding the CIT(A) order when I received penalty notice from the department I have inquired with another consultant Mr. Ravi Jambudia and after verification of details he informed me that against me an order of Income Tax Officer as well as CIT(A) has been passed. Hence, this penalty notice is received by me.

10. Thereafter, he consult with Mr. Dipen Sukhadia advocate in Ahmedabad and he advise to file the ppeal before ITAT and hence we are filing this appeal. but since I have come to know regarding the order of CIT(A) considerable time has been passed and this appeal is delayed by 340 days.

4. The Learned Counsel for the assessee, submitted that delay of 346 days had occurred because the assessee is a 7th standard educated and not verse with income tax proceedings and small businessman. The Ld. Counsel for the assessee explained that on advice of local person that assessee earned less than below Rs.2,50,000/- therefore, he needs not file income tax return, and hence he acted on his advice. Thereafter assessee received demand notice from Department for depositing cash during demonetization period than assessee contracted local tax consultant who dealing with tax matter and handed over said notice. So whatever notices received by assessee immediately forwarded to him. Thereafter assessee’s tax consultant filed appeal before Ld. CIT(A) who unadmitted appeal due to non payment of advance tax. u/s 249(4) of the Act and order was passed by Ld.CIT(A), on 29.01.2024. At the time of filing appeal, the assessee for the purpose of service of notice of hearing has given e- mail id. of vijayborsaniya78@yahoo.com in Form-35. Thereafter assessee contracted tax consultant of Ahmedabad and he advised to file appeal before Tribunal. Then assessee immediately filed appeal before Tribunal on 12.03.2025. The Learned Counsel for the assessee, submitted before the Bench that assessee has explained the sufficient reason and cause for delay of 346 days. Therefore, in the interest of justice the delay may be condoned, and the appeal may be decided on merit.

5. On the other hand, the Learned Senior DR for the Revenue opposed the prayer of the assessee for condonation of the delay.

6. I have heard both the parties on this preliminary issue. I note that the ld.CIT(A) not admitted appeal section 249(4)(b) of the Act. Besides, assessee is a small businessman and not well versed with tax matter. I am of the view that provisions of law have to be adhered strictly and that one cannot be allowed to act in leisure and make a mockery of enacted law, because law and provisions are laid down to benefit both sides of litigation. Be that as it may, I have to do justice and the Hon’ble Supreme Court in the case of Collector, Land Acquisition vs Mst. Katiji and others, reported in 167 ITR 471, (1988) SC 897) (7) observed as follows: “4. When substantial justice and technical considerations are pitted against each other, 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……...”

10. I have heard both the parties and note that in the assessee’s case under consideration, the assessment was carried out u/s 144 of the Act and the impugned order passed by the ld. CIT(A), is a non-speaking order, therefore, I do not wish to make any comments on the merits of the grounds raised by the assessee. As per assessee, his income was below the maximum amount which is not chargeable to tax, therefore, assessee did not file return of income and did not pay advance tax, hence provisions of section 249(4)(b) do not attract; as alleged by Ld. CIT(A). I further 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. Hence, I am of the view that one more opportunity should be given to the assessee, to plead his case before the Assessing Officer. I 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, I 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 Assessing Officer to adjudicate the issue afresh on merits after giving reasonable opportunity of hearing to assessee as the assessee wanted to file additional evidence. Needless to direct that before passing the order afresh, the Assessing Officer shall allow opportunity of hearing to the assessee. The assessee is also directed to furnish all the evidence at the earliest possible of time before Assessing Officer as and when call for. In the result, ground raised by the assessee is allowed for statistical purposes.