VINODBHAI RAVJIBHAI SAKHIYA,RAJKOT vs. ITO, WARD-1(2)(2), RAJKOT, RAJKOT

I have heard both the parties on this preliminary issue. The assessee explained the reasons for delay stating that both tax consultants committed mistake, for which assessee debarred for filing appeal before the Tribunal in time. There is a statutory limit prescribed for filing of appeal in the Act. The invocation of the power to condone any delay, major or minor, in observing such time limit is possible only on the satisfaction of the authorities, regarding the appellant having been unable to file the appeal in time due to sufficient cause. The appellant cannot be entitled to automatic admission of appeal filed after the time limit. The law on the issue can be summarized to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation.

However, the words ‘sufficient cause’ should receive a liberal construction so as to advance substantial justice where no negligence nor inaction nor want of bona fides is imputable to the applicant [Bharat Auto Center v. CIT 282 ITR 366]. Thus, mistake of the lawyer or accountant/ tax consultant may be a good reason for condoning delay. Having heard both the parties and after having gone through the affidavit as well the delay condonation, application, I am of the considered opinion that in the interest of justice, the delay deserves to be condoned. I, accordingly, condone the delay.

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 Page | 3 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. In the result, ground raised