KIRANKUMAR KISHORBHAI ZANKAT,KODINAR vs. INCOME TAX OFFICER, WARD 4 JND, VERAVAL

At the outset, the Ld. Counsel for the assessee submitted that the assessee has filed an affidavit giving reasons for delay in filing of appeal. In the affidavit, it has been stated that due to his medical problems, assessee could not concentrate his tax appeal. It is also stated that due to change of tax consultant’s office, the delay has been occurred. The Ld. Counsel submitted that delay of 363 days was neither deliberate nor intentional based on the contention of the petition filed for condonation of delay therefore, in the interest of justice the delay may be condoned and appeal may be heard on merit.

On the other hand, the Ld. Senior DR for the revenue submitted that the assessee failed to prove the sufficient cause to condone the delay for 363 days; therefore, the appeal should be dismissed.

I have heard both the parties on the preliminary issue for condonation of delay and noted that assessee was suffering severe lower limb radiating and unable to walk. The medical certificate is also produced. I find that the delay of 363 days in filing the appeal was not deliberate and intentional on the part of assessee. Moreover, assessee is not going to be benefitted by filing appeal belatedly. It is now fairly settled that when technical consideration and cause of substantial justice are pitted against each other, the cause of substantial justice may be preferred.

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. Hence, the delay in filing the appeal is condoned and I proceed to decide the case on merit.

Merit of the case, at the outset, the Ld. Counsel for the assessee submitted that during assessment proceedings, notices were served on different dates, therefore, assessee made compliance with the said notices issued by Assessing Officer and assessment order was passed u/s 143(3) of the Act. The Ld. Counsel for the assessee submitted that during the appellate proceedings, Ld.CIT(A) issued noticed on old email-id of the assessee, which the assessee was not using. The assessee had informed the department, his new email-id, on which the ld. CIT(A), did not send the notices, as a result the Ld. CIT(A) confirmed the additions made by Assessing Officer. The Ld. Counsel submitted that the assessee wants to submit additional evidence and documents before Assessing Officer to prove his claim before Assessing Officer. The Ld. Counsel for the assessee prayed before the Bench that one more opportunity should be allowed to prove his case before the Assessing Officer, in the interest of justice. Therefore, the matter may be remitted back to the file of the Assessing Officer for fresh adjudication.

On the other hand, the Ld. Senior DR for the revenue did not have any objection, if the matter is remitted back to the file of the Assessing Officer for fresh adjudication.

I have heard both the parties and carefully gone through the submission put forth on behalf of the assessee Considering the above facts, I note that assessee has not given sufficient opportunity of being heard his case successfully before the ld. CIT(A) due to non receipt of notices. I note that Ld. Counsel for the assessee prayed before the Bench that one more opportunity should be given to prove assessee’s case before Assessing Officer. Therefore, without delving much deeper into the merits of the case, in the interest of justice, I restore the matter back to the file of Assessing Officer 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, 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. It is 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, appeal filed by the assessee is allowed for statistical purposes.