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Income Tax Appellate Tribunal, SURAT (SMC
Before: SHRI DR. A. L. SAINI
आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeal filed by the assessee, pertaining to Assessment Year (AY) 2017-18, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals), [in short “the ld. CIT(A)”], National Faceless Appeal Centre (in short ‘the NFAC’), Delhi, dated 05.06.2023, which in turn arises out of an assessment order passed by the Assessing Officer u/s 144 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), dated 08.10.2019.
The appeal filed by the assessee for assessment year (AY) 2017-18 is barred by limitation by thirty seven (37) days. The Ld. Counsel for the assessee filed a petition for condonation of delay, requesting the Bench to condone the delay. The contents of the petition for condonation of delay, are reproduced below:
ITA.621/SRT/2023/AY.2017-18 Rameshchandra B. Ahir “1. That appeal order of NFAC. Delhi is dated 05.06.2023 has been communicated through portal under the tab “For Your Information”. It is deemed to be served on 05.06.2023. Appeal is filed with the registry, ITAT, Surat on 11.09.2023. Thus it is filed after -97- days from the date of order of 1st appellate authority. Limitation period provided under the Act, for filing of 2nd appeal is -60- days. Therefore, the appeal is late by -37- days.
2. Ld. NFAC has served appeal order on portal electronically. I am an Agriculturalist living in Village-Siyalaj of Tal-Mangrol. which a very remote place in Surat District and -40-kms to -45-kms. away from nearest city Surat. I am not having any computer system, internet facility etc. The villag Siyalaj is very backward where electricity is also not available on continuous and regular basis. Shri Kishorbhai Patel has provided services w.r.t. Income Tax matter for the year A.Y.2017-18. He has arranged through some other CA to file and represent my appeal case before the CIT(A) / NFAC, Delhi. It was not in his knowledge that CIT(A) order was served on portal in my case on 05.06.2023.
3. The Jurisdictional ITO has insisted for payment of outstanding assessed dues for A.Y. 2017-18 as my 1st appeal was decided ex-part and the Ld. CIT(A), NFAC has dismissed my appeal.
At that time, Shri. Kishorbhai Patel has discussed my matter pertaining to filing of appeal before Honorable ITAT Surat with Shri Rajesh M. Upadhyay, who has advised to file 2nd appeal in the ITAT with a condonation petition. He directed to make payment of appeal fees of Rs. 10,000/-. He prepared, appeal memo, grounds, condonation petition, affidavit etc. in connection with filing of appeal.
5. That the delay in filing the appeal for -37- days is neither willful nor deliberate but due to the newly introduced system of service of orders electronically through portal. I am not well equipped and up-dated with the new system. I was totally unaware about electronically service of appeal order. Otherwise appeal can be filed in time. I have also participated assessment proceeding. I have not been benefited in any way by filling of late appeal. On the contrary, I am carrying out huge burden of tax, interest, Penalty etc. on my shoulders.
Honorable Apex Court in the case of Commissioner land Acquisition Ms Katiji 167 ITR 471 SC has held as “The Legislature has conferred the power to condone delay by enacting section 51 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on de merits. The expression "sufficient cause” employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice that being the life-purpose of the existence of the institution of courts. It is common knowledge that this court has been making a justifiably liberal approach in matters instituted in this court.
ITA.621/SRT/2023/AY.2017-18 Rameshchandra B. Ahir But the message does not appear to have percolated down to all the other courts in the hierarchy.” And as such a liberal approach is adopted on principle as it is realized that: (i) Ordinarily, a litigant does not stand to benefit by lodging an appeal late. (ii) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. It is, therefore, humbly prayed that this Income Tax Appellate Tribunal may be pleased to condone the delay of -37- days in filing the appeal and hear the case on merits and thus render justice.”
The Ld. Counsel for the assessee also contended that apart from the reasons given in the petition for condonation of delay, there was a mistake on the part of the CA/Advocate, who did not care of the assessee`s taxation matter, hence delay has occurred. Therefore, ld Counsel prays the Bench that since the assessee has explained the sufficient reasons, therefore delay may be condoned.
4. On the other hand, Learned Senior Departmental Representative (ld. Sr. DR) for the Revenue submitted that the assessee has failed to explain the sufficient reason to condone the delay, therefore delay should not be condoned.
I have heard both the parties on this preliminary issue and noted that delay of thirty seven days (37) in filling the appeal mainly arisen due to mistake of CA/Advocate therefore, assessee should not be penalized. The assessee is an agriculturist, and is residing in very remote place, about 45 kilometers away from Surat city, there is no computer and internet facility. The words ‘sufficient cause’ should receive a liberal construction so as to advance substantial justice where no negligence nor inaction nor want of bona fides is imputable
ITA.621/SRT/2023/AY.2017-18 Rameshchandra B. Ahir to the applicant [Bharat Auto Center v. CIT 282 ITR 366]. The mistake of the lawyer or accountant may be a good reason for condoning delay. I find that there is good and sufficient cause for filing the appeal belatedly. Accordingly, I condone the delay of 37 days and admit the appeal for adjudication.
6. On merit, Ld. Counsel contended that order passed by the Assessing Officer is under section 144 of the Act and order passed by the ld. CIT(A) is also an ex parte order. During the appellate proceedings, the assessee could not receive the notices of hearing, therefore assessee could not attend proceedings before ld. CIT(A), therefore Ld. Counsel contended that one more opportunity should be given to the assessee to plead his case before the Assessing Officer. The Ld. Counsel undertakes the responsibility to attend the proceedings before the Assessing Officer, hence Ld. Counsel requested the Bench to remit this lis back to the file of the Assessing Officer for fresh adjudication.
On the other hand, ld. Sr. DR for the Revenue submitted that assessee is negligent during the assessment proceedings as well as appellate proceedings. During the assessment proceedings, the assessee did not appear before the Assessing Officer, therefore Assessing Officer has passed the ex parte order and on appeal, before the ld. CIT(A), again the assessee could not attend the hearing, therefore basic facts were not examined by the assessing officer, hence, matter may be remitted back to the file of Assessing Officer for de novo assessment.
ITA.621/SRT/2023/AY.2017-18 Rameshchandra B. Ahir 8. I have heard both the parties. Considering the above facts, I note that assessee could not plead his case successfully before the ld. CIT(A). I also note that Ld. CIT(A) has not passed the order as per the mandate of provisions of section 250(6) of the Act. That is, ld. CIT(A) did not pass order on merit based on the material available on record. Hence, I am of the view that one more opportunity should be given to the assessee to plead his case before the Assessing Officer. I 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, I restore the matter back to the file 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, I 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. For statistical purposes, the appeal of the assessee is treated as allowed.
In the result, appeal filed by the assessee is allowed for statistical purposes.
Order is pronounced on 30/10/2023 in the open court.