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Facts
The assessee filed two appeals for AYs 2010-11 and 2011-12, which were delayed by 225 days. The delay was attributed to notices being sent to an old email address of a former Chartered Accountant, who failed to inform the assessee. The Ld. CIT(A) had passed an ex-parte order.
Held
The tribunal condoned the delay in filing the appeals, citing the principle of substantial justice over technical considerations. It then restored the matter to the Assessing Officer for fresh adjudication, allowing the assessee to submit additional evidence and ensuring a speaking order after providing a fair hearing.
Key Issues
The key legal issues were the condonation of a 225-day delay in filing appeals and the need for a fresh adjudication by the Assessing Officer due to an ex-parte and non-speaking order by the Ld. CIT(A).
Sections Cited
Section 143(3), Section 147, Section 250(6)
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Income Tax Appellate Tribunal, RAJKOT BENCH, RAJKOT
Before: DR. ARJUN LAL SAINI & DR. DINESH MOHAN SINHA
आदेश /ORDER
PER DR. ARJUN LAL SAINI, AM:
The captioned two appeals filed by the same assessee, pertaining to assessment years 2010-11and 2011-12, are directed against the orders passed by the Learned Commissioner of Income Tax (Appeals), [Ld. CIT(A)], National Faceless Appeal Centre, Delhi, dated 28.02.2025, which in turn arise out of separate assessment orders passed by the Assessing Officer (assessing officer) under section 143(3) r.w.s. 147 of the Income Tax Act, 1961 (in short, ‘the Act’) dated 15.11.2017 and 09.11.2018 respectively.
These two appeals filed by the assessee are barred by limitation by 225 days. The assessee moved two separate petitions for condonations of delay, requesting the Bench to condone the delay. The contents of the petition for condonation of delay are same in both the appeals of different assessment years. Learned Counsel for the assessee, explained the sufficient cause for this said delay, stating that assessee had given email address as tosifarba@ymail.com in the appeal memo.
& 884/Rjt/2025/AYs 2010-11 & 2011-12 Bhisti Exports However, despite the said update, the Department continued to issue notices to the e-mail address of the former Chartered Accountant, cakhoda44@gmail.com. The old Chartered Accountant, did not inform the assessee about the notices issued by the learned CIT(A) and about the passing of the order by learned CIT(A). The non-compliance was purely due to the above bona fide circumstances and not on account of any deliberate defiance or intention to ignore the departmental notices, therefore, the delay in filing these appeals may be condoned in the interest of Justice.
On the other hand, Ld. Sr. DR for the revenue stated that the assessee has failed to explain the sufficient cause, as the reasons explained by the assessee in the petition for condonation of delay are not sufficient reasons to condone such delays, therefore, the delay should not be condoned, and both the appeals of the assessee may be dismissed.
We have heard both the parties on this preliminary issue. We are of the view that provisions of law have to be adhered strictly and that one cannot be allowed to act in leisure and make a mockery of enacted law, because law & provisions are laid down to benefit both sides of litigation. Be that as it may, we have to do justice and the Hon’ble Supreme Court in the case of Collector, Land Acquisition vs Mst. Katiji and others, reported in 167 ITR 471, (1988 SC 897) (7) observes .... “4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay.” When we weigh these two aspects then the side of justice becomes heavier and casts a duty on us to deliver justice. We note that the reasons given in the affidavit for condonation of delay were convincing and these reasons would constitute reasonable and sufficient cause for the delay in filing these appeals. Having heard both the parties and after having gone through the affidavit as well the delay condonation, application, we are of the considered opinion that in the interest of justice, the delay deserves to be condoned. We, accordingly, condone the delay in both appeals.
Page 2 of 4 & 884/Rjt/2025/AYs 2010-11 & 2011-12 Bhisti Exports
On merit, Ld. Counsel for the assessee submitted that assessee could not furnish the details and documents before the assessing officer, as the relevant details and documents were not available when the proceedings were going on before the assessing officer. Now, the assessee wants to submit additional evidence to prove his claim, therefore, these two appeals for AYs 2010-11 and 2011-12 should be restored back to the file of assessing officer for fresh adjudication.
On the other hand, Ld. Sr. DR for the revenue did not have any objection if the matter is restored to the file of assessing officer.
We have heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws relied upon and perused the fact of the case including the findings of the ld CIT(A) and other materials brought on record. We note that in the assessee’s case under consideration, the assessment was carried out u/s 143(3) r.w.s. 147 of the Act and the impugned order passed by the ld. CIT(A), is an ex parte order and non-speaking order, therefore, we do not wish to make any comments on the merits of the grounds raised by the assessee.The Ld. Counsel for the assessee submitted before the Bench that additional evidences, are to be submitted before assessing officer and these, additional evidence were also not submitted before the Ld. CIT(A), therefore, matter may be restored back to the file of the assessing officer. Considering the above facts, we note that assessee could not plead his case successfully before the ld. CIT(A). We also note that Ld. CIT(A) has not passed the order as per the mandate of provisions of section 250(6) of the Act. We also note that assessee did not submit entire documents and evidences before the assessing officer. Hence, we are of the view that one more opportunity should be given to the assessee to plead his case before the assessing officer. We note that it is settled law that principles of natural justice and fair play require that the affected party is granted sufficient opportunity of being heard to contest his case. Therefore, without delving much deeper into the merits of the case, in the interest of justice, we restore the matter back to the file
Page 3 of 4 & 884/Rjt/2025/AYs 2010-11 & 2011-12 Bhisti Exports of assessing officer for de novo adjudication and pass a speaking order after affording sufficient opportunity of being heard to the assessee, who in turn, is also directed to contest his stand forthwith. Therefore, we deem it fit and proper to set aside the order of the Ld. CIT(A) and remit the matter back to the file of the assessing officer to adjudicate the issue afresh on merits. It is needless to say that the assessee will be at liberty to adduce any evidences as deemed relevant before the assessing officer at the time of assessment, proceedings in consequence to this order and the Assessing Officer shall, allow the assessee adequate opportunity of being, heard and to make relevant submissions, and then pass a speaking order which is fair and judicious. For statistical purposes, both appeals of the assessee are treated as allowed.
In the result, both appeals of the assessee are allowed for statistical purposes.