JAGDISH BENIWAL,GANDHIDHAM vs. THE INCOME TAX OFFICER, WARD-1, BARMER, BARMER

At the outset, there is a delay of 289 days in filing the present appeal before the Tribunal. The assessee has moved a condonation petition explaining that the delay occurred due to the assessee being unaware of the status of the appeal before the CIT(A) and the lapse on the part of his erstwhile authorised representative, who failed to communicate the outcome or advise timely further action. It was submitted that the assessee had re-engaged counsel only after becoming aware of the adverse order, and immediate steps were taken thereafter to prefer the present appeal.

After considering the submissions and the explanation furnished, and keeping in view the principles laid down by the Hon’ble Supreme Court in the case of Collector, Land Acquisition vs. Mst. Katiji [(1987) 167 ITR 471 (SC)], wherein a liberal approach has been advocated in matters involving condonation of delay, particularly where the explanation is bona fide and absence of mala fides is apparent, we are inclined to condone the delay of 289 days in filing the appeal before the Tribunal.

On merits, the appeal arises from an ex parte assessment order dated 23.12.2019 passed by the Assessing Officer under section 144 of the Act estimating gross profit @ 8% of the foreign turnover amounting to Rs.3,65,85,751/- , resulting in an addition of Rs.26,29,088/- over and above the returned income of Rs.2,97,770/-.

The Ld. CIT(A) dismissed the appeal for non-prosecution, noting that multiple opportunities had been provided through notices dated 06.01.2021, 19.10.2022, 13.12.2023, and 29.12.2023. However, no submissions were received from the assessee in support of the grounds raised. The CIT(A), relying on judicial precedents, held that mere filing of an appeal without effective pursuit cannot justify interference with the assessment order.

The Ld. AR before us submitted that the non-compliance before the lower authorities was due to the negligence of the authorised representative, who failed to act on the notices issued and did not inform the assessee of the progress in the matter. It was contended that the assessee was deprived of a fair opportunity and is now willing and prepared to participate in the proceedings and furnish all required documents.

The Ld. DR, though relying on the orders of the lower authorities, did not seriously dispute the factual position that the assessment and appellate orders were both passed ex parte.

We have considered the rival contentions and perused the record. It is clear that the assessee did not get an effective opportunity to present his case either during assessment or before the CIT(A). In the interests of justice and fair play, and to prevent miscarriage of justice, we are of the considered opinion that the matter ought to be restored to the file of the Assessing Officer for fresh adjudication after affording due opportunity to the assessee.

Accordingly, the delay of 289 days in filing the appeal before the Tribunal is condoned. The order of the CIT(A) is set aside and the matter is restored to the file of the Assessing Officer for de novo consideration in accordance with law.

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