RAMJIBHAI DEVJIBHAI MOKARIYA,PORBANDAR vs. THE ITO WARD-2(4), PORBANDAR

On merit, at the outset itself, the ld. Counsel for the assessee assailed the impugned order by contending that assessee could not represent his case before Assessing Officer and the Assessing Officer made addition of Rs.17,00,000/- u/s 144 of the Act and passed assessment order on 05.11.2019. The assessee wants to submit additional evidence, therefore, matter may be remitted back to the file of Assessing Officer.

Aggrieved by the order of Assessing Officer, assessee carried the matter in appeal before Ld. CIT(A). Before Ld.CIT(A) the appeal was filed on 11.10.2021 and in Form-35 the e-mail id was mentioned jrmokariya91@gmail.com and stated that assessee is an individual and not filed his return of income for the year under consideration. Subsequently case was re-opened u/s 147 of the Act by issuing notice u/s 148 on 06.03.2019 on the basis of cash deposited of Rs.17,00,000/-. The appeal was filed beyond the statutory time limit provided for filing the appeal as per section 249(2)(c) of the Act. On merit, the ld CIT(A) also held that the assessee is not interested in pursuing his appeal. Resultantly, unadmitted the appeal u/s 249(2)(c) and confirmed the addition made by Assessing Officer as there was no sufficient cause for condonation of delay.

Further aggrieved by the order of Ld. CIT(A) assessee filed present appeal before Tribunal. The Ld. Counsel for the assessee stated that assessee is illiterate and not knowing anything about income tax provisions and upon received of notices by him from time to time he handed over all notices to his previous tax consultant for making timely compliance. However, previous tax consultant neither complied with any of the notice nor informed the assessee about such non- Page | 3 compliance for the reason best known to him. The Ld. Counsel for the assessee contended that in the interest of justice, another opportunity may be allowed to contest the appeal before the First Appellate Authority may be granted to the assessee, after condoning the delay before Ld.CIT(A).

The ld. DR for the Revenue debarred from objecting the stand of the ld. Counsel.

I have heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld. CIT(A) and other materials brought on record. The Ld. AR of the assessee submitted that there was sufficient and reasonable cause for condonation of delay before Ld.CIT(A). In fact, the assessment was completed u/s 144 of the Act. The Ld. AR of the assessee submitted that Ld.CIT(A) did not admit the appeal of the assessee in an ex parte proceeding appeal was dismissed by Ld.CIT(A) without giving fair and reasonable opportunity of hearing to the assessee. The ld. AR of the assessee prayed before the Bench that assessee has a good case on merit and is likely to succeeds if one opportunity should be given and the matter may be restored back to the file of Assessing Officer for deciding the issue on merit and he undertakes on behalf of assessee to be more vigilant in future in complying the notices issued by the Assessing Officer. The Ld. AR of the assessee stated that assessee wants to submit documents and evidence before Assessing Officer to prove his claim, therefore, the matter may be restored back to the file of Assessing Officer.

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 in filing appeal before Ld.CIT(A) and admit the appeal of the assessee to adjudicate on merit.

So far as merits of the case is concerned, I find that Ld.CIT(A) has passed the order in ex parte proceedings. Keeping in view the peculiar facts of the case, I find from perusal of the order of the ld. CIT(A) that the order of ld. CIT(A) is not as per mandate of Section 250(6) of the Act. 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 interests of justice, I restore the matter back to the file of Assessing Officer for de novo adjudication after affording sufficient opportunity of being heard to the assessee, who in turn, is also directed to contest his stand forthwith. Therefore, I set aside the order of Ld. CIT(A) and deem it fit and proper to remit the matter back to the file of the Assessing Officer to adjudicate the issue afresh on merits. The assessee is also directed to be more vigilant in future and not to take any adjournment without any valid reason. It is Page | 5 needless to say that the assessee will be at liberty to adduce any evidences as deemed relevant before the assessing officer at the time of 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.

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