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

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ITA 941/IND/2016Status: DisposedITAT Indore28 February 2017AY 2011-127 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal condoned the delay, finding the assessee's explanation credible as the written submissions were not considered and the rectification application was not adjudicated. The Tribunal set aside the CIT(A)'s order due to violation of natural justice and restored the case for fresh adjudication.

What were the facts?

The assessee's appeal was delayed by 55 days. The assessee claimed the delay was due to the First Appellate Authority (CIT(A)) not considering written submissions and not deciding a rectification application. The Revenue contended that the assessee did not appear or file submissions.

What were the issues?

Whether the delay in filing the appeal should be condoned and whether the CIT(A)'s order was passed in violation of natural justice by not considering the assessee's submissions.

Which sections of the Income-tax Act were involved?

Section 154

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, INDORE BENCH, INDORE

Before: SHRI C.M. GARG & SHRI O.P. MEENA

For Appellant: Shri Rajesh Mehta, Shri Mohd. Javed - DR

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

2.

The learned assessee’s representative (AR) drawing our

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).

3.

Replying to the above, the learned DR vehemently contended

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.

4.

Placing rejoinder to the above submissions of the learned DR,

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.

5.

After careful consideration of the above submissions, we are of

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.

6.

At the very outset, at the request of both the parties, we have

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.”

7.

The learned counsel for the assessee pointed out that the

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.

8.

Replying to the above, the learned DR strenuously supported

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.

9.

On careful consideration of rival submissions, we are of the

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.

10.

In the result, ground no. 1 is allowed.

11.

Since we have restored the entire appeal to the file of the

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

assessee on merit become academic in nature and we are not

adjudicating them.

12.

In the result, the appeal is allowed for statistical purposes.

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/

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