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Facts
The assessee, an individual and non-resident, filed an appeal before the CIT(A) which was dismissed as time-barred by 34 days. The assessee had also not appeared before the CIT(A), leading to an ex-parte order. The assessee then filed an appeal before the ITAT, along with an application for condonation of delay.
Held
The Tribunal held that justice should not be denied on technical grounds and that the CIT(A) ought to have decided the appeal on merits, or at least called for an explanation from the assessee even if it was barred by limitation. The Tribunal found it fit to restore the appeal to the CIT(A)'s file.
Key Issues
Whether the CIT(A) was justified in dismissing the appeal without affording an opportunity of being heard and without considering the condonation of delay application. Whether the appeal should be restored to the CIT(A) for adjudication on merits.
Sections Cited
147
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “I” BENCH, MUMBAI
Before: SHRI NARENDRA KUMAR BILLAIYA, HON’BLE & SHRI RAHUL CHAUDHARY, HON’BLE
PER NARENDRA KUMAR BILLAIYA, AM:
This appeal by the assessee is preferred against the order of ld. CIT(A) -58, Mumbai, dt. 30/01/2023 pertaining to Assessment Year 2011-12. 2. The grievance of the assessee reads as under:- “1. On the facts and circumstances of the case as well as in law, the Learned CIT(A) has erred in passing the ex-parte order without granting sufficient opportunity of being heard to the appellant.
On the facts and circumstances of the case as well as in law, the Learned CIT(A) has erred in dismissing the appeal, by not allowing the condonation of delay, without granting opportunity of being heard to the appellant. 2
On the facts and circumstances of the case as well as in law the Learned CIT(A) has erred in not adjudicating the ground of reopening the assessment u/s.147 of the Income Tax Act, 1961 by the Learned Assessing Officer, without considering the facts and circumstances of the case.
On the facts and circumstances of the case as well as in law the Learned CIT(A) has erred in not adjudicating the ground of appeal that the Learned Assessing Officer has made the addition of Rs.3,25,50,00,000/- without considering the facts and circumstances of the case.
Without prejudice to the above, the Learned CIT(A) as well as the Learned Assessing Officer has erred in not appreciating the fact that the entire amount was already added in AY 2009- 10 and adding the same again would lead to double taxation.
On the facts and circumstances of the case as well as in law the Learned CIT(A) has erred in not adjudicating the ground of appeal that the Learned Assessing Officer has made an addition of Rs.69,12,21,810/- on account of alleged unexplained investments, without considering the facts and circumstances of the case.
The appellant craves leave to add, amend, alter or delete the said ground of appeal.”
This appeal is barred by limitation. The assessee moved an application for condonation of delay in filing of appeal supported by an affidavit dt. 10/06/2024. Opposing the condonation application, the ld. D/R strongly pointed out that even before the First Appellate Authority, the assessee did not file the appeal on time and did not appear and the ld. CIT(A) was left with no choice but to decide the appeal ex-parte. It is the say of the ld. D/R that the assessee is a habitual defaulter and does not deserve any sympathy from any appellate authority. The D/R also submitted the screenshot of e-mail notice which was duly served and still the assessee chose not to file the appeal on time. 3
We have given a thoughtful consideration to the submissions of the ld. D/R and have carefully considered the condonation application along with the affidavit. We find that the assessee is an individual and a non-resident. He file his return of income on time. The return was re- opened u/s 147 of the Act and the assessment order was framed by the AO on 26/12/2019. The returned income of Rs.1.89 Lakhs was assessed at Rs.3,94,64,10,810/-. The assessee preferred appeal before the ld. CIT(A) but the appeal was filed after the expiry of period of limitation by 34 days. The ld. CIT(A) dismissed the appeal in limine.
We are of the considered view that justice should not be denied on technical grounds. In our humble opinion, the ld. CIT(A) ought to have decided the appeal on merits of the case. Even if it was barred by limitation, the ld. CIT(A) ought to have called for explanation from the assessee. Even if the appeal is filed beyond limitation before us, we deem it fit to restore the entire quarrel to the file of the ld. CIT(A) with a direction to decide the appeal afresh after affording a reasonable and adequate opportunity of being heard to the assessee by serving proper notice and the assessee is directed to avail this second innings.
In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the Court on 1st August, 2024 at Mumbai. (RAHUL CHAUDHARY) ACCOUNTANT MEMBER Mumbai, Dated 01/08/2024 *SC SrPs *SC SrPs *SC SrPs *SC SrPs 4
आदेश की "ितिलिप अ"ेिषत/Copy of the Order forwarded to : अपीलाथ" / The Appellant
""थ" / The Respondent 2. संबंिधत आयकर आयु" / Concerned Pr. CIT 3. आयकर आयु" अपील
( ) / The CIT(A)- िवभागीय "ितिनिध ,आयकर अपीलीय अिधकरण, मुंबई /DR,ITAT, Mumbai, 5. गाड" फाई/ Guard file. 6. आदेशानुसार/ BY ORDER,