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Facts
The assessee's appeal was against the order of the CIT(A) which dismissed the appeal ex-parte. The original assessment order was passed under section 144 r.w.s. 147 of the Income Tax Act, 1961. The assessee contended that their consultant failed to act on notices, leading to the ex-parte dismissal.
Held
The Tribunal found that the assessee had a sufficient cause for the delay in filing the appeal, considering the circumstances explained and the Supreme Court's judgment on condonation of delay. The Tribunal decided to condone the delay and admit the appeal.
Key Issues
Whether the delay in filing the appeal before the CIT(A) was intentional and whether the assessee had a sufficient cause for the delay.
Sections Cited
144, 147, 148, 253(5)
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Income Tax Appellate Tribunal, RAJKOT BENCH, RAJKOT
Before: DR. ARJUN LAL SAINI & SHRI DINESH MOHAN SINHA
(�नधा�रणवष� / Assessment Year: (2011-12) (Hybrid Hearing) Bhavesh Govindbhai Dadhaniya Vs. The ITO, ward-1(1)(4), Rajkot 3-Jasaraj Nagar, B/h. Umiyani Aayakar Bhavan, Race Course Chowk, Nr. Umiyaji Pan, 150ft Ring Road, Ring Road, Mavdi Area, Rajkot – 360001 Rajkot – 360004 �थायीलेखासं./जीआइआरसं./PAN/GIR No.: APKPD 6290 E (Appellant) (Respondent) Appellant by : Shri Mehul Ranpura, Ld. AR Respondent by : Shri Abhimanyu Singh Yadav, Ld. Sr. DR Date of Hearing : 08/01/2025 Date of Pronouncement : 02/04/2025 आदेश / O R D E R PER DINESH MOHAN SINHA, JM:
Captioned appeal filed by the assessee is directed against the order passed by the Ld.Commissioner of Income Tax (Appels), National Faceless Appeal Centre, Delhi [(in short “Ld.CIT(A)”] vide order dated 05/08/2024, for Assessment Year (AY) 2011-12, which in turn arises out of an assessment order dated 01/12/2018 passed by Assessing Officer under section 144 r.w.s. 147 of the Income Tax Act, 1961 (in short “the Act”). 2. Grounds of appeal raised by the assessee are as under:
1. The grounds of appeal mentioned hereunder are without prejudice to one another.
The learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi (hereinafter referred to as the "CIT(A)" erred on facts as also in law in dismissing appeal ex-parte.
Ld. CIT(A) erred on facts as also in law in rejecting the appellant's application for condoning delay in filing the appeal. The appeal may kindly be directed to be decided on merits. 4. The Ld. CIT(A) erred on facts as also in law in confirming addition made of Rs.24,27,470/-on the alleged ground that the appellant failed to explain source of cash deposits of Rs.24,27,470/- in the bank account held with Bank along with necessary documentary evidence. The addition confirmed is totally unjustified and uncalled for and deserves to be deleted and may kindly be deleted. 5. Your Honour's appellant craves leave to add, to amend, alter, or withdraw any or more grounds of appeal on or before the hearing of appeal.
Brief facts of the case are that the AO made an assessment u/s. 144 r.w.s. 147 making addition of Rs.24,27,470/- on the base that the same remain unexplained being cash deposited of Rs.24,27,470/- in the saving bank account maintained with the ICICI Bank. A notice u/s. 148 of the Act was issued to the assessee on 28.03.2018, after recording the reasons and obtaining permission from the PCIT-3, Rajkot for re-opening of the case for AY 2011-12. The assessee did not file return of income in response to the said notice. The Assessing Officer vide ex-parte order dated 01.12.2018 passed u/s. 144 r.w.s. 147 of the Act, dismissed the appeal of the assessee.
That, the assessee filed an appeal before the CIT(A), who dismissed the appeal of the assessee by observing as under:
“4.8 Since the appeal filing is time barred and in absence of any justified reason/ explanation the same is not maintainable ab initio”. Accordingly, the appeal of the appellant is disposed on merits and based on information/documents available on records.” reason/explanation the same is not maintainable ab initio.
Aggrieved with the order of the Ld.CIT(A) dated 05/08/2024, now the assessee is in appeal before us.
The Ld.AR has submitted that the CIT(A) has issued three notices, but appellant could not response to any of the notice nor could file any documentary evidence thereof. The appeal has been filed late by 266 days. Though a part of the delay is covered by the direction of the Hon’ble Supreme Court issued on pandemic period, however, the assessee was required to explain the delay of remaining period. The Ld.AR, therefore prayed that an opportunity of hearing may please be granted to the assessee by the lower authorities since the ex-parte orders have been issued by the lower authorities. The Ld. AR of the assessee submitted that the assessee’s Affidavit/Application dated 06/01/2025 (placed on record) may be considered for condonation of delay and the same is reproduced hereunder:
“That the assessment in the my case was finalised vide order u/s. 144 r.w.s.147 of the Income-tax Act, 1961 (hereinafter referred as to the "Act"] dated 01.12.2018 assessing total income at Rs. 24.27.470/- after making addition of Rs.24,27,470/-. 2 Further, in an appeal filed, the Ld. Commissioner of Income-tax (Appeals). National Faceless Appeal Centre, Delhi has vide order dated 05.08 2024 in appeal no. CIT(A), Rajkot-1/10014/2020-21 dismissed the appeal ex-parte 3. The above stated orders and notices issued during assessment proceeding & appellate proceeding have been served on email id zvasoya56@gmail.com This email id is belonging to my consultant Shri Kalpeshbhai Vasoya However, the said person did not file any replies and even not filed appeal in statutory time limit though assured me that he is taking necessary action However, I received order of Ld. CIT(A) dismissing appeal on the ground of late filing of appeal On seeking explanation from Shri Kalpeshbhai Vasoya he informed that due to multiple email addresses he was not regularly accessing all email ID therefore notices receive in email were remained unattended and sought apology for not remaining careful.
Thus, I have collected every detail/papers from Shri Kalpeshbhai Vasoya and handed over the matter to the firm of qualified chartered accountants to take further course of action in the matter.
Because of the circumstances as stated above there has occurred delay in filing appeals before the Hon'ble Commissioner of Income-tax(Appeals). The delay in filing the appeals is not intentional but because of the inadvertent circumstances as stated above.
Whatever stated as above is true to the best of my knowledge and belief and nothing is concealed.”
6.1. That, the Ld. AR of the assessee drew our attention towards the judgement of the Hon'ble Supreme Court in the case of Collector Land Acquisition v. Mst. Katiji & Others 167 ITR 471 (SC). That, whenever substantial and technical consideration are opposed to each other, cause of the substantial justice must be preferred by adopting oriented approach. On the other hand, the Ld. DR for the revenue left the matter to the wisdom of Bench without raising any objection. We have considered the explanation advanced by assessee and in absence of any contrary fact or material on record, the assessee is found to have a "sufficient cause" for delay in filing present appeal. We find that section 253(5) of the Act, empowers the ITAT to admit an appeal filed after expiry of prescribed time, if there is a "sufficient cause" for not presenting appeal within prescribed time. Thus, taking into account the provision of section 253(5) of the Act and the decision of Hon'ble Supreme Court (supra), we take a judicious view to condone the delay and admit the appeal and proceed further for hearing.
On the other hand, the Ld. Sr. DR has relied upon the orders of the lower authorities below. However, has not objected to the prayer of the assessee for providing an opportunity of being heard to the assessee.
We have heard both the parties and perused the material available on record as well as the orders of the lower authorities. We note that the several notices, dated 08/01/2021, 25/01/2021 and 31/07/2024, have been issued by the Ld. CIT(A) for hearing of the case. We note that the order of the CIT(A) is silent on service of notices upon the assessee. We further observed that the assessee has not excess of the e-mail-id because it belongs to the Page | 4 Consultant, who did not inform to the assessee. Hence, the assessee has no knowledge about the notices issued by the Ld. CIT(A). Therefore, we noted that the assessment was framed u/s. 144 r.w.s. 147 of Act by the AO. Looking to the facts and circumstances of the case, in interest of justice, we are of the view that an opportunity should be given to the assessee to present his case before lower authority. We, therefore, set aside the order of the Ld.AO and remand the matter back to the file of the Ld.AO for fresh adjudication on merits, after giving due opportunity to the assessee. The assessee is further directed to submit all the required documents in support of the income earned during the year.
In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the Open Court on 02 / 04 /2025 at Rajkot.