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Income Tax Appellate Tribunal, DELHI BENCHES “SMC”: DELHI
Before: SHRI BHAVNESH SAINI
This appeal by assessee has been directed against the order of Ld. CIT(A)-I, Noida dated 29.02.2016 for the A.Y. 2009-10.
Briefly the facts of the case are that assessee filed return of income declaring income of Rs.3,47,727/-. The A.O. issued notice u/s 148 of the Income Tax Act, 1961. The assessee is a professional and has shown gross receipts of Rs.15,93,003/- in the return of income on which net profit has been worked out at Rs.5,71,818/- after deducting various expenses. As per 26 AS the gross receipts of assessee are Rs.30,66,487/- as against that of Rs.15,93,003/-. A.O. therefore noted that there is suppression of receipts by Rs.14,73,484/-. The assessee failed to reconcile the same, therefore,
ITA 7616/Del/2017 A.Y.:2009-10 Sh. Siddeshwar Prasad vs. ITO, Ward 1(4), Noida A.O. made addition of Rs.14,73,484/-. The assessee filed appeal before the Ld.CIT(A). The Ld.CIT(A) noted that the assessee has not enclosed ITNS 151 with the appeal. Therefore, assessee was informed to remove the defect in appeal papers. Assessee was also directed to explain the delay in filing the appeal. Assessee made no compliance. The Ld.CIT(A) again fixed the appeal for 26th Feb., 2016, The assessee made a request for adjournment that the assessee is out of station and requested for adjournment for 10th April, 2016. The Ld. CIT(A) rejected application for adjournment and noted that it is mandatory for assessee to file ITNS 151 which is however a curable defect, but assessee has not removed the defect despite giving opportunity. Further assessee did not care to explain the delay in filing the appeal, therefore, the appeal was rejected without going into merits.
The assessee filed the present appeal challenging the above addition.
The assessee has mentioned 20 July, 2017 as date of receipt of the impugned order, however, appeal was filed on 19 December,2017. Therefore the appeal is time barred by 92 days. The assessee filed application for condonation of delay in which it is explained that the limitation to file appeal before the Tribunal expired on 19th October, 2017, therefore, there was a delay of less than two months in filing the appeal. The assessee in his application and affidavit explained that documents were given to Mr.Ravi Gupta, C.A. but he did not file and when it came to assessee’s knowledge the appeal was immediately filed. Ld. Counsel for the assessee submitted that assessee is a Sr.Citizen of around 69 years of age, therefore, nominal delay may be condoned which is opposed by Ld.D.R. It may be noted that ITA 7616/Del/2017 A.Y.:2009-10 Sh. Siddeshwar Prasad vs. ITO, Ward 1(4), Noida limitation to file appeal expired on 19 September,2017 and not 19 October, 2017.
After considering the request of assessee and the issue involved, I am satisfied that assessee being a Sr.Citizen was prevented by sufficient cause from filing the appeal within time because he was depending upon his C.A. and due to his lapse, the appeal could not be filed on time. The delay in filing the appeal is, therefore, condoned.
As regards merits of the case, Ld. Counsel for the assessee explained that appeal was filed before the Ld. CIT(A) on 31 January, 2012, therefore, it is filed within time. The receipt of filing the appeal is shown in the Court. This fact has not been verified by the Ld. CIT(A). In case, the Ld. CIT(A) verified the date of filing of the appeal from the record, perhaps the appeal may not have been time barred. Further the Ld. CIT(A) rejected the appeal of assessee because ITNS 151 was not filed. Ld. CIT(A) noted that it is a curable defect would mean that non filing of ITNS 151 may not be fatal to the decision making process. The Ld.CIT(A) instead of going into technicalities should have decided the appeal on merits. It may be noted that on the last date of hearing assessee asked for adjournment which was refused, therefore, in such circumstances the assessee should have been given one more opportunity to remove the defect in filing ITNS 151 or Ld.CIT(A) should have decided the appeal in his absence on merits. In this view of the matter, I am of the view this matter requires reconsideration at the level of Ld.CIT(A). I accordingly set aside the order of Ld.CIT(A) and restore the appeal to his file with a direction to decide the appeal of ITA 7616/Del/2017 A.Y.:2009-10 Sh. Siddeshwar Prasad vs. ITO, Ward 1(4), Noida assessee as per law by giving reasonable and sufficient opportunity of being heard to assessee and A.O. In case the assessee do not cooperate with Ld.CIT(A), the Ld.CIT(A) may decide the appeal as per law, in the absence of assessee.