SHRI SUCHA SINGH LANGAH,MOHALI vs. PR. CIT-2, CHANDIGARH

Per Vikram Singh Yadav, Accountant Member:

These are three appeals filed by the assessee against the

separate orders of Learned Commissioner of Income Tax

(Appeals)-2, Gurgaon [in short the ‘Ld.CIT(A)’] dated

31.08.2016 relating to assessment year 2010-11 in ITA

No.1004/Chd/2018, Learned Pr.Commissioner of Income Tax-

2, Chandigarh [in short the ‘Ld.PCIT’] dated 14.03.2017

relating to assessment year 2012-13 in ITA

No.1021/Chd/2018 and Learned Pr.Commissioner of Income

Tax-II, Chandigarh [in short the ‘Ld.PCIT’] dated 10.03.2016

relating to assessment year 2011-12 in ITA

No.1004/Chd/2018.

that there is a delay in filing of the appeal by 507 days. In

this regard, the Ld. AR has submitted that the order was

served on the assessee on 06.01.2017 and thereafter the

appeal was filed on 27.07.2018 with delay of 507 days. It

was submitted that the assessee was mentally unfit due to

3 ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12

conspiracy created against him by involving him in certain

fake cases which were latter converted into FIR and the

assessee was also sentenced to prison during this period. It

was submitted that the assessee was hospitalized from time

to time and only on recovering from the health issues and

coming out of mental trauma of jail custody, he took steps

to engage the Counsel and filed the present appeal. It was

submitted that there was a reasonable and bonafide reason

for not filing the appeal within the prescribed time and the

delay so happened may kindly be condoned and the assessee

be heard on merits of the case. In support, our reference

was drawn to the sworn affidavit submitted by the assessee

and the contents thereof reads as under:

“1. That I am a permanent resident of 80, B Block, Kansal Enclave, Mohali, Punjab. 2. That I am a regular Income tax assessee with ITO, Ward 6(2), Mohali and my PAN number is ANPL0443K. 3. That Income Tax assessment for my case for AY 2010-11 was concluded by Ld. DCIT, Circle 6(1), Mohali vide order dtd. 26.03.2013 where against I filed appeal before the Worthy CIT(A), Chandigarh. This appeal was transferred by Income Tax Department to Worthy CIT(A)-2, Gurgaon without any intimation to me. 4. That the above referred appeal was dismissed ex- parte by Worthy CIT(A)-2, Gurgaon vide order dated 31.08.2016 which was served on me/person know to me on 06.01.2017. 5. That against above order of Worthy CIT(A) served on me on 06.01.2017, I filed appeal before the Hon'ble

4 ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12

ITAT, Chandigarh on 27.07.2018.

5 ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12

issues and coming out of mental trauma of Jail custody, I immediately took further action to file an appeal and engaged a counsel to enable me to do so and appeal was filed on 27.07.2018. e. That all above lead to delay of 507 days in filing of appeal. 8. That there was reasonable and bonafide cause in not filing the appeal in prescribed time before the Hon'ble ITAT. The delay in filing of the appeal deserves to be condoned and I pray that the same may please be condoned. I deserve to be heard on merits of the case and I undertake to co-operate fully towards early disposal of this matter.” 3. Per contra, the Ld. DR submitted that there is a

substantial delay which has happened in the filing of the

present appeal and the assessee has failed to explain the

reasonable cause for the delay in filing such appeal.

Accordingly, the Ld. DR opposed the condonation appeal

filed by the assessee.

available on record. There is no dispute that there has been

a delay in filing the present appeal and the period of delay

as admitted by the assessee comes to 507 days. There is

also no dispute that under section 253(5) of the Act, the

Tribunal may admit an appeal filed beyond the period of

limitation where it is satisfied that there was sufficient

cause on the part of the assessee for not presenting the

appeal within the prescribed time. The explanation of the

6 ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12

assessee therefore becomes relevant to determine whether

the same reflects sufficient cause on his part in not

presenting the present appeal within the prescribed time. In

the instant case, it has been contended by the ld AR and as

also stated in the affidavit so submitted by the assessee

that the assessee was mentally unfit due to conspiracy

created against him by involving him in certain fake cases

which were latter converted into FIR and the assessee was

also sentenced to prison during this period. It was

submitted that the assessee was hospitalized from time to

time and only on recovering from the health issues and

coming out of mental trauma of jail custody, he took steps

to engage the Counsel and filed the present appeal. The

copy of FIR, order of Hon'ble High Court for releasing him

from the prison and certificate from the Doctors are also

placed on record. The contents of the affidavit and

supporting documentation have not been disputed by the

Revenue. We therefore find that the assessee was under the

mental and physical duress in terms of facing and attending

to other criminal cases which apparently took precedence

and prevented him from taking steps in terms of filing the

present appeal and there is no culpable negligence or

malafide on the part of the assessee in delayed filing of the

present appeal. We therefore find that there exists sufficient

7 ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12

and reasonable cause for condoning the delay in filing the

present appeal and as held by the Hon’ble Supreme Court,

where substantial justice and technical considerations are

pitted against each other, the cause of substantial justice

deserved to be preferred and the assessee deserve to be

heard on merits of the case. Therefore, in exercise of powers

under section 253(5) of the Act, we hereby condone the

delay in filing the present appeal as we are satisfied that

there was sufficient cause for not presenting the appeal

within the prescribed time and the appeal is hereby

admitted for adjudication on merits.

a delay by 441 days as admitted by the assessee in filing the

present appeal. During the course of hearing, the Ld. AR

has reiterated the submissions made earlier and has drawn

our reference to the affidavit filed by the assessee in this

regard and has prayed for condoning the delay in filing the

present appeal.

condonation petition filed by the assessee.

for the delay in filing the present appeal, following the

aforesaid discussions in ITA No.1004/Chd/2018, the delay

8 ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12

so happened is hereby condoned as we are satisfied that

there was sufficient cause for not presenting the appeal

within the prescribed time and the appeal is hereby

admitted for adjudication on merits.

assessee in ITA No.1004/Chd/2018 against the impugned

order passed by the Ld.CIT(A)-2, Gurgaon dated 31.08.2016

pertaining to Assessment Year 2010-11.

relates to ex-parte order passed by the Ld.CIT(A) without

providing reasonable opportunity to the assessee. In this

regard, the Ld. AR has submitted that the reasons for non-

appearance before the Ld.CIT(A) was that the notices fixing

the date of hearing were not served upon the assessee. It

was submitted that in the impugned order, the Ld.CIT(A)

has himself stated that the notices issued on 08.07.2016,

19.07.2016 and 12.08.2016 fixing the date of hearing were

returned undelivered. It was accordingly submitted that due

to non-awareness of the proceedings before the Ld.CIT(A),

the matter could not be attended by the assessee. It was

submitted that the matter may be remanded back to the

office of ld CIT(A) and the assessee undertakes to cooperate

and participate fully towards early disposal of the matter.

9 ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12

impugned order and submitted that the notices fixing the

date of hearing were issued on three occasions. However,

there was not response and none attended on behalf of the

assessee. It was accordingly submitted that the Ld.CIT(A)

was left with no option and decided the mater on the basis

of material available on record.

available on record. Considering the fact that the matter

has admittedly not been decided on merits and we donot

have the benefit of the findings of the ld CIT(A) and so is the

case with the Revenue and the assessee, it would be

appropriate that the matter is remanded back to the file of

the ld CIT(A) who shall examine the same on merits after

providing reasonable opportunity to the assessee. The

assessee is also directed to attend to the proceedings as so

directed and file necessary submissions/documentation as

so instructed.

upon and left open.

statistical purposes.

10 ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12

raised various grounds of appeal. In one of the grounds of

appeal, the assessee has challenged the impugned

revisionary order u/s 263 of the Act on account of lack of

opportunity. In this regard, Ld. AR has again reiterated the

submissions made earlier and it was submitted that notices

fixing the date of hearing on 27.01.2017 and 03.03.2017

were not served on the assessee and the same were returned

undelivered and it was due to such unawareness that the

proceedings could not be attended. It was accordingly

submitted that the matter may kindly be set aside to the file

of Ld.CIT(A) and the assessee hereby undertake to cooperate

and participate towards early disposal of the matter.

dated 27.01.2017 and 03.03.2017 were issued to the

assessee. However, the assessee failed to avail of the

opportunity as neither the assessee nor any authorized

representative appeared on the specified date and even no

communication was received from the assessee. It was

accordingly submitted that the Ld.CIT(A) accordingly

proceeded in the matter and has set aside the order passed

by the AO u/s 143(3) of the Act, dated 26.03.2015 with a

direction to pass an order afresh in accordance with law

keeping in view the above observations and also in view of

11 ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12

the queries raised in the show cause notice dated

27.01.2017 after allowing opportunity of being heard to the

assessee. It was accordingly submitted that there is no

infirmity in the impugned order passed by the Ld.CIT u/s

263 of the Act and the same be confirmed.

available on record. Considering the fact that the matter

has admittedly not been decided on merits and we donot

have the benefit of the findings of the ld CIT(A) and so is the

case with the Revenue and the assessee, it would be

appropriate that the matter is remanded back to the file of

the ld CIT(A) who shall examine the same on merits after

providing reasonable opportunity to the assessee. The

assessee is also directed to attend to the proceedings as so

directed and file necessary submissions/documentation as

so instructed.

upon and left open.

statistical purposes.

order passed u/s 263 of the Act for assessment year 2011-

12 ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12

12, the assessee has raised various grounds of appeal and

one of the grounds of appeal relates to passing the

impugned order without affording reasonable opportunity to

the assessee. In this regard, the Ld. AR submitted that the

notice fixing the date of hearing was not served on the

assessee and it is on record of the Ld. Pr.CIT that the

notices issued on 25.02.2016 fixing the date of hearing were

returned undelivered and it was due to such unawareness

that the proceedings could not be attended and the order

was passed ex-parte without decision on merits by the Ld.

Pr.CIT. It was accordingly submitted that the order so

passed by the Ld. Pr.CIT may be set aside and the matter be

remanded back for fresh consideration.

notice dated 23.02.2016 was sent to the assessee through

Speed Post and the same has been returned back

undelivered. At the same time, notices were served on the

assessee’s Chartered Accountant on 26.02.2016 and a copy

was also sent at the address of the assessee i.e. Vill. & PO

Langah, Distt. Gurdaspur and despite service of notices

from all these means, the assessee has failed to avail this

opportunity and even that queries raised during the

proceedings u/s 263 of the Act remained unexplained. The

assessment order passed u/s 143(3) of the Act dated

13 ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12

27.03.2014 was set-aside with a direction to pass a fresh

order in accordance with law keeping in view the

observations by the Ld. Pr.CIT and after allowing

opportunity of being heard to the assessee. It was

accordingly submitted that there is no infirmity in the order

so passed by the Ld. Pr.CIT and the same may kindly be

confirmed.

available on record. Considering the fact that the matter

has admittedly not been decided on merits and we donot

have the benefit of the findings of the ld CIT(A) and so is the

case with the Revenue and the assessee, it would be

appropriate that the matter is remanded back to the file of

the ld CIT(A) who shall examine the same on merits after

providing reasonable opportunity to the assessee. The

assessee is also directed to attend to the proceedings as so

directed and file necessary submissions/documentation as

so instructed.

upon and left open.

statistical purposes.

14 ITA Nos.1004, 1021, 1005/Chd/2018 A.Ys.2010-11, 2012-13 & 2011-12

Order pronounced on 17.01.2022.

Sd/- Sd/- (VIKRAM SINGH YADAV) (SUDHANSHU SRIVASTAVA) �याय�क सद�य/Judicial Member लेखा सद�य/Accountant Member Dated: 17.01.2022 *रती* आदेश क� ��त�ल�प अ�े�षत/ Copy of the order forwarded to : 1. अपीलाथ�/ The Appellant 2. ��यथ�/ The Respondent 3. आयकर आयु�त/ CIT 4. आयकर आयु�त (अपील)/ The CIT(A) 5. �वभागीय ��त�न�ध, आयकर अपील�य आ�धकरण, च�डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड� फाईल/ Guard File आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar