SRI ADITYA CHOWDHURY,BURDWAN vs. ITO, WARD 1(2), BURDWAN, BURDWAN

आदेश/ORDER Per Shri A.T.Varkey, JM This is an appeal filed by the assessee against the order of Ld. CIT(A), Burdwan dated 31.12.2016 for AY 2008-09. The assessee has raised the following grounds of appeal: “1. For that rejection of “Application of Condonation of Delay” dated 27.06.2011 on 30.12.2016 (After 5 years 6 months) was not leased upon the facts and circumstances of the case and cannot be sustained.

2. For that outright rejection of, without giving a proper chance to represent, entire grounds of Appeal preferred before the Ld. CIT(Appeals), Burdwan was against natural justice and was not based upon the facts and circumstances of the case and cannot be sustained.”

2. None appeared for the assessee. However, after taking note of the grounds of appeal and the impugned order of Ld. CIT(A), we note that the Ld. CIT(A) has dismissed the appeal on the ground that assessee could not satisfy the Ld. CIT(A), the cause which prevented the assessee from filing the appeal within the limitation period prescribed by the statute. According to the Ld. CIT(A), there was a delay of five months for filing the appeal and since the assessee could not give any reasonable cause for condonation of delay, the Ld. CIT(A) did not go to the merits of the case and dismissed the appeal. We note that the assessee had in fact filed the condonation application giving the reason that the AR who was entrusted with the matter did not cooperate with the assessee and, therefore, he could not file the appeal on time. Finding out that the Ld. AR was not cooperating, the assessee gave the appeal to the new AR, Shri S. Chowdhury, Advocate. According to the Ld. CIT(A), the reason given by the assessee for filing the appeal after five months was not a reasonable cause to justify condonation of delay, so, without going into merits, he dismissed the appeal.

3. We note that the main grievance of the assessee is that the assessee had filed the appeal before the Ld. CIT(A) on 27.06.2011 along with the condonation for delay application dated 27.06.2011 and the ld. CIT(A) dismissed the application for condonation of delay after five years and six months vide impugned order dated 30.12.2016 without giving the opportunity to the present AR Shri S. Chowdhury, Advocate, which according to the assessee is in gross violation of the natural justice. We note that the appeal has been filed by the assessee on 27.06.2011 along with the application for condonation of delay for five months. The reason given for the delay was that the assessee’s AR who was initially entrusted with the appeal did not cooperate with him and so, the assessee had to engage a new counsel Shri S. Chowdhury, Advocate to prepare the appeal and thereafter the AR filed appeal before the ld. CIT(A). We note that the condonation application was filed on 27.06.2011 which fact has been admitted by the ld. CIT(A) in first para of the impugned order which was passed undisputedly after five years and six months on 30.12.2016. We note that the initial notice in respect to hearing of appeal was issued on 25.04.2016 fixing the hearing on 10.05.2016. The Ld. CIT(A) admits that during the appellate proceedings Shri S. Chowdhury, Advocate on behalf of the assessee had attended and discussed the case and has also filed a written submission in support of the appeal. In such a scenario, the action of Ld. CIT(A) taking note of the five months delay in filing the appeal and dismissing the appeal without going into the merits of the case cannot be countenanced because it smacks of arbitrariness. If the Ld. CIT(A) felt that the reason given by the assessee is unbelievable then the assessee should have been given an opportunity to prove that the first AR who was entrusted with the matter did not cooperate could have been proved by other evidence which the Ld. CIT(A) did not do. Rather he made a mountain out of mole and after discussing the appeal with the Ld. AR and without going into the merits,