SAVAN KISHORKUMAR KANANI,RAJKOT vs. THE INCOME TAX OFFICER, WARD-1, DWARKA

The Ld. Counsel for the assessee explained the reasons for delay, stating that impugned order passed by Ld.CIT(A), on 05.02.2024. However, this appeal is filed on 30.04.2025 before this Tribunal. The Ld. Counsel for the assessee, submits that delay in filing the appeal is neither intentional nor deliberate. In fact, the impugned order was not served upon the assessee either in physical form or by way of e-mail. At the time of filing appeal, the assessee for the purpose of service of notice of hearing has given e-mail id. of samirbhuptani@hotmail.com and mobile number of the Authorized Representative of assessee in Form-35. On verification of ITBA portal, assessee found that notices were sent on the mail i.d viz., hdrawaniitr@gmail.com which was belonging to ex-tax consultant who never intimated to assessee. Then, after, assessee received penalty notice on the updated email- ID and then assessee came to know that order was passed by the CIT (Appeal). When assessee approached his CA, to know about the status of his appeal, and on checking Income tax e-filing portal, his CA came to know about dismissal of appeal. Then assessee immediately filed appeal before Tribunal on 30.04.2025. On further checking ITBA system, it was found that notice of hearing of appeal was sent at the e-mail of previous consultant. The said previous e-mail address does not belong to the assessee or his recent CA, therefore, neither the assessee was aware nor there was any occasions for compliance before ld CIT(A). Resultantly, the Ld.CIT(A) passed ex parte order. The Learned Counsel for the assessee, submitted before the Bench that assessee has explained the sufficient cause and reasons for delay of 365 days. Therefore, in the interest of justice the delay may be condoned, and the appeal may be decided on merit.

On the other hand, Ld.Senior DR for the Revenue opposed the prayer of the assessee for condonation of delay and stated that delay should not be condoned on such flimsy reasons because it is the duty of the assessee to take care that the appeal should be filed on time, and because of the carelessness of the assessee the delay may not be occurred. The Ld. Sr-DR also stated that assessee has failed to explain the sufficient cause for condonation of delay. Therefore, delay should not be condoned and appeal of assessee should be dismissed.

I have heard both the parties on the preliminary issue. I find that because of the mistake on the part of previous tax consultant, the assessee should not be penalized. I am of the considered view that assessee has explained sufficient cause and therefore delay needs to be condoned.

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……...”

When I weigh these two aspects then the side of justice becomes heavier and casts a duty on us to deliver justice. I note that the reasons given in the affidavit for condonation of delay, was convincing, and the reason would constitute reasonable and sufficient cause for the delay in filing this appeal. Considering the above facts and circumstances of the case, as narrated above, I am of the considered opinion that in the interest of justice, the delay deserves to be condoned and appeal of the assessee should be decided on merits in accordance with law. Accordingly, I condone the delay and admit the appeal of the assessee to adjudicate on merit.

On merit, at the outset itself, the ld. Counsel for the assessee assailed the impugned order by contending that the assessee could not represent his case before Ld. CIT(A) and the order being an ex-parte order, stood vitiated on account of violation of principle of natural justice. The ld. Counsel for the assessee contended that in the interest of justice, another opportunity to contest the appeal before the assessing officer may be granted to the assessee.

On the other hand, learned DR for the revenue submitted that there is no point to give second inning to the assessee and assessee`s appeal should be dismissed, as the assessee was negligent before both the lower authorities as he did not appear before both the lower authorities.

I have heard both the parties and note that in the assessee’s case under consideration, the assessment was carried out u/s 144 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, I do not wish to make any comments on the merits of the grounds raised by the assessee. I 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. 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.