BHISTI EXPORTS ,VERAVAL vs. INCOME TAX OFFICER WARD-4, VERAVAL

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.

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

In the result, both appeals of the assessee are allowed for statistical purposes.