DINESHKUMAR NANUBHAI VIRVAL,SURAT vs. ITO, WARD-1, BARDOLI

Grounds of appeal raised by the assessee, are as followed: 1. On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has erred in confirming the action of the Assessing Officer in passing ex-parte order U/s.144 of the Act, 1961. 2. On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has erred in confirming the action of the Assessing Officer in making addition of Rs. 11,05,86,804/- on account of total credits in all bank accounts during the year treated as alleged unexplained money u/s.69A rws. 115BBE of the Income Tax Act, 1961. 3. On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has erred in confirming the action of the Assessing Officer in applying tax rate @60% u/s. 115BBE of the Income Tax Act, 1961 on addition u/s.69A of the Income Tax Act, 1961. 4. On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has not offered adequate opportunities to hear the case and passed ex-parte order and hence the case may please be set aside and restored back to the CIT(A) or AO. 5. It is therefore prayed that the above addition may please be deleted as learned members of the tribunal may deem it proper. 6. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of the hearing of the appeal.

At the outset the registry of this court bring into the notice that this Appeal filed by the Assessee is delayed by 465 days. The assesse filed an affidavit of condonation of delay. Ld. AR of the assesse submitted the appellant is an individual. He has not filed his return of income for the AY 2017-18. In this case, information was available that the appellant had deposited cash and other

The assesse challenged the legality and validity of order of ld. CIT(A) by moving of an appeal before this Tribunal along with an application for condonation of delay.

We have considered the submissions made by Ld. AR on behalf of assessees and in the absence of any contrary fact or material on record, the assessee is found to have a "sufficient cause" for delay in filing present appeal as narrated above in foregoing para. 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 and condone delay in this appeal. At the same time, as agreed 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 set-aside the order of ld. CIT and the matter remand back to the file of AO for a fresh adjudication 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.