SHRI VISHAL BAJAJ,INDORE vs. THE ITO WARD 5(1), INDORE

आदेश /O R D E R

PER SHRI C.M. GARG, JM

This appeal has been filed by the assessee against the

order of the learned CIT(A)-II, Indore, dated 29.4.2016 in

First Appeal No. IT-53/14-15/23 for the assessment year

2011-12.

ITA No. 941/Ind/2016 Vishal Bajaj vs. ITO

APPLICATION FOR CONDONATION OF DELAY OF 55 DAYS

attention to the affidavit sworn by the assessee on 12.9.2016

submitted that the learned CIT(A) passed the order stating that

neither the case was represented personally or through counsel nor

any written submissions were filed. The learned counsel for the

assessee further submitted that factually the assessee filed the

written submissions before the learned CIT(A) on 11.3.2016 and the

appeal before the Tribunal was delayed because the assessee tried

to get the first appellate order rectified by considering the written

submissions of the assessee, but the rectification application of the

assessee u/s 154 of the Income Tax Act, 1961 was not accepted by

the learned CIT(A).

that when the assessee or his authorized representative did not

appear before the learned CIT(A) and even no written submissions

were filed during the proceedings then the cause stated by the

ITA No. 941/Ind/2016 Vishal Bajaj vs. ITO assessee in the affidavit cannot be taken as gospel truth and as

such the condonation of delay cannot be allowed to the assessee.

the learned AR contended that it is not in dispute that the assessee

filed written submissions before the first appellate authority on

11.3.2016 which have not been considered in the order passed on

29.4.2016 and requesting for consideration of these written

submissions by the learned CIT(A), the assessee filed rectification

application u/s 154 of the Act which has not been decided till date

and after waiting for a pretty long time, the assessee filed this

appeal which is delayed by 55 days due to the reasons stated in the

affidavit of the assessee which remained uncontroverted by the

revenue.

the view that the facts stated in the affidavit of the assessee clearly

show that his written submissions dated 11.3.2016 were not

considered by the learned CIT(A) in the ex-parte order passed by

him and even the rectification application of the assessee was not

adjudicated upon by the first appellate authority. The facts stated

ITA No. 941/Ind/2016 Vishal Bajaj vs. ITO in the affidavit of the assessee deserve to be accepted as there is no

rebuttal on behalf of the revenue. In view of the above, we are

satisfied that the cause shown by the assessee for the delay of 55

days in filing of the appeal before the Tribunal is sustainable and

acceptable and the case of the assessee cannot be dismissed at the

threshold merely because the appeal has been filed belatedly due to

the reasons beyond the control of the assessee. Hence, the delay of

55 days in filing the appeal is condoned and the application of the

assessee for condonation of delay is allowed. Resultantly, the appeal

of the assessee is admitted for hearing.

heard the arguments on ground no. 1 of the assessee’s appeal

which reads as under :-

“1. That the aggregate addition of Rs.4,20,390/- to the income

has been done without affording any opportunity of hearing

and without any basis, is illegal, wrong, bad in law, against

the facts of the case and hence liable to be deleted.”

impugned addition has been made without affording any

ITA No. 941/Ind/2016 Vishal Bajaj vs. ITO opportunity of hearing to the assessee and without any basis, thus

the same is illegal, wrong, bad in law and against the facts of the

case, hence, liable to be deleted. The learned counsel for the

assessee vehemently pointed out that the learned CIT(A) has passed

the order by violating the principles of natural justice as he has not

afforded due opportunity of hearing to the assessee and even the

written submissions of the assessee dated 11.3.2016 placed on

record of the learned CIT(A) have not been considered in the

impugned order.

the first appellate order and submitted that when the assessee is

not cooperating with the learned CIT(A) during the first appellate

proceedings then he has no option but to decide the appeal on the

basis of material available on record. However, the learned DR

could not controvert this fact that the assessee has actually filed

written submissions dated 11.3.2016 explaining his stand and

challenging the additions made by the Assessing Officer which have

not been considered in the impugned order. The learned DR also

submitted that the department has no serious objection if the case

is restored to the file of the learned CIT(A) to the stage of the first 5

ITA No. 941/Ind/2016 Vishal Bajaj vs. ITO appellate proceedings, if it is found necessary, just and proper in

the interest of justice.

view that since the assessee has not been allowed due opportunity

of hearing and his written submissions (supra) have not been

considered at the time of passing of the impugned order, therefore,

the impugned order passed, violating the principles of natural

justice, is set aside and the case is restored to the file of the learned

CIT(A) for fresh adjudication after allowing due opportunity of

hearing to the assessee. The learned CIT(A) shall decide the appeal

afresh without being prejudiced from his earlier order.

learned CIT(A) for fresh adjudication, therefore, other grounds of the

assessee on merit become academic in nature and we are not

adjudicating them.

ITA No. 941/Ind/2016 Vishal Bajaj vs. ITO The order has been pronounced in open Court on 28th

February, 2017.

Sd/- sd/-

लेखा सद�य �या�यक सद�य (O.P.Meena) (C.M. Garg) Accountant Member Judicial Member

February 28th , 2017.

Dn/