MUNSHI PATEL,INDORE vs. ITO 5(4), INDORE

Feeling aggrieved by appeal-order dated 16.08.2023 passed by learned Commissioner of Income-Tax (Appeals)-NFAC, Delhi [“CIT(A)”] which in turn arises out of assessment-order dated 18.11.2019 passed by learned ITO, 5(4), Indore [“AO”] u/s 144/147 of Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2012-13, the assessee has filed this appeal.

The registry has informed that the present appeal is delayed by 75 days and therefore time-barred. Ld. AR for assessee submitted that the assessee is an illiterate person which is evident from thumb impression instead of any signature on various documents. The assessee has also filed following affidavit to explain the reason of delay:

Ld. AR submitted that the reason of delay is adequately explained in above affidavit. He further submitted that there is no deliberate lethargy, negligence, mala fide intention or ulterior motive of assessee in making delay and the assessee does not stand to derive any benefit because of delay. Accordingly, he prayed to condone the delay. Ld. DR for Revenue left the matter to the wisdom of Bench without raising any objection. We have considered the explanation advanced by assessee and in absence of any contrary fact or material on record, the assessee is found to have a sufficient cause for delay in filing present appeal. We find that section 253(5) of the Act empowers the ITAT to admit an appeal after expiry of prescribed time, if there is a sufficient cause for not presenting appeal within prescribed time. It is also a settled position by Hon’ble Supreme Court in Collector, Land Acquisition Vs Mst. Katiji and others 1987 AIR 1353, 1987 2 SCC 387 that whenever substantial justice and technical considerations are opposed to each other, the cause of substantial justice must be preferred by adopting a justice-oriented approach. Thus, taking into account the provision of section 253(5) and the decision of Hon’ble Supreme Court, we take a judicious view, condone delay, admit appeal and proceed with hearing.

It emerged during hearing that the CIT(A) has passed ex-parte order due to non-prosecution of first-appeal by assessee on the dates of hearing and confirmed the AO’s assessment. That apart, the AO has also passed ex- parte assessment-order for non-representation by assessee. Ld. AR for assessee submitted that the assessee sold a rural agricultural land from which resultant capital gain is not taxable but the assessee could not adduce evidence to the lower-authorities and that is why the lower- authorities have taxed the resultant capital gain in absence of supporting evidences. Ld. AR submitted that the assessee is having all evidences in his possession and the copies of same are filed at Page 3-90 of Paper-Book. Therefore, this matter should be remitted back to the level of AO for adjudication afresh after considering assessee’s evidences and submissions.

In view of consensus by both sides and also having regard to the principle of natural justice and fair play, we deem it fit to give one more opportunity to assessee so that the assessee can represent his case before AO for a proper adjudication. Accordingly, we remand this matter back to the file of AO for a proper adjudication on merit after giving opportunity of hearing to the assessee uninfluenced by his earlier order in any manner. The assessee is also directed to ensure participation in the hearings as may be fixed by AO and do not seek unnecessary adjournments failing which the AO shall be at liberty to pass appropriate order in accordance with law.

Resultantly, this appeal is allowed for statistical purpose.