MAHAWAR VAISHYA SEWA SANSTHA,JAIPUR vs. CIT EXEMPTION, JAIPUR, JAIPUR

Vide assessment order dated 25.12.2019, total income of the assessee was assessed at Rs. 99,00,000/- u/s 144 r.w.s. 147 of the Act, relating to assessment year 2012-13, while making addition as regards unexplained investment , as provided u/s 69 of the Act. At the same time, the Assessing Officer ordered for initiation of penalty proceedings u/s 271(1)(b) & (c) of the Act.

As noticed above, feeling dissatisfied with the two assessment orders, the assessee went in appeal before Learned CIT(A), but both appeals stand dismissed, because of no respite having been granted to him in those proceedings. Hence, these two appeals.

It may be mentioned here that the impugned orders passed by Learned CIT(A) are dated 12.10.2023. The assessee could challenge the same prescribed period of limitation, when calculated from the date of service/communication of the orders. Both the appeals came to be presented on 08.01.2024. Registry reported that the appeals were barred by limitation, having been filed 28 days after within the prescribed period of limitation. Initially, no application seeking condonation of delay was filed. It was subsequently that the applications u/s 5 of the limitation Act came to be filed in each appeal on 16.04.2024.

In the given facts and circumstances, the assessee should have also filed affidavit of his Accountant and that of the Chartered Accountant, to substantiate that there was ‘sufficient cause’ in non filing of the appeals within the prescribed period of limitation. Except the affidavits of the assessee-applicant, no material has been placed on record. However, the affidavit of the assessee-applicant goes unchallenged for want of cross examination from the side of the department. In the given situation, it was for the assessee to specify as to who was his Accountant and asto on which date he delivered copies of the 5 ITA No. 19 & 20/JPR/2024 Sh. Mahendra Mehra vs. ITO impugned orders to the earlier Chartered Accountant. These particulars do not find mention in the applications or in the affidavits. Furthermore, the assessee has nowhere alleged in the application as to on which date he came to know about the mistake on the part of his Accountant and as to on which date, he engaged Shri Rajendra Goyal, Advocate for the purpose of filing of the present appeals. All these material particulars were required to be pleaded in the applications, and as such should have been pleaded. The appellant-applicant was also required to testify about the said significant facts. But, no step has been taken by the applicant.

However, having regard to the facts and circumstances of the case and the issue involved in the appeals, we deem it a fit case to condone the delay of 28 days in filing of the appeals. We also deem it a fit case to impose cost on the applicant for the said delay. Accordingly, each application is disposed off and the appellant- applicant is directed to deposit costs of Rs. 1,000/- for each appeal. Costs to be deposited in Prime Minister’s Relief Fund. On behalf of the appellant, it has been submitted that costs shall be deposited without delay.

As requested by both the sides, appeals have also been heard on merits today itself.

It is available from the impugned orders that Learned CIT(A) issued five notices to the assessee-appellant in each appeal. Ld. AR of the assessee sought adjournment before Learned CIT(A) thrice i.e. for 08.09.2023, 20.09.2023 and 06.10.2023, Learned CIT(A) allowed his request twice, granting adjournments, but rejected the third prayer for adjournment when the appeals were listed for 06.10.2023.

We have enquired from Ld. AR for the assessee-appellant as to the grounds on which adjournments were sought before Learned CIT(A), but he has not able to provide us any reply or information regarding the reasons/grounds for seeking adjournments.

However, record reveals that notices dated 31.08.2023 were issued for taking up the appeals on 08.09.2023; that notices dated 14.09.2023 were issued for taking up of the appeals on 20.09.2023; and the final 7 ITA No. 19 & 20/JPR/2024 Sh. Mahendra Mehra vs. ITO opportunity was granted to the appellant vide notices dated 21.09.2023 for taking up of the appeals on 06.10.2023. It is true that the assessee-appellant should have been duly represented before Learned CIT(A), particularly, when the last opportunity was granted, two notices having been issued prior thereto, but, taking into consideration that there was short gap between three notices issued as say the opportunities granted, we deem it a fit case were one more opportunity should be granted in the proceedings before Ld. CIT(A), to enable the assessee-appellant to represent his appeals before Learned CIT(A) so as to provide reasonable opportunity of being heard. Result 12. in view of the above discussion, both the appeals are disposed off for statistical purpose, and the matters are remanded to Learned CIT(A) for fresh decision of both appeals, after providing one opportunity to the assessee-appellant of being heard. We may observe that had the assessee-appellant put in appearance before Learned CIT(A), there was no need to make prayer for remand of the matters. Keeping in view this fact and that no justification has been submitted before us for seeking adjournments in those appeals before