SHRI PANKAJBHAI KARAMSHIBHAI SAVANI,SURAT vs. INCOME TAX OFFICER, WARD - 2(3)(3), SURAT

Hence. I could no: submit the Notice to my C.A.”

On the other hand, Learned Departmental Representative (Ld. DR) for the Revenue submitted that assessee has not explained the bonafide reasons to condone the delay, therefore such huge delay should not be condoned. The Ld. DR pointed out that assessee has changed three CAs/Advocates and in this process, there was a delay in filing the appeal and this is not the sufficient reason to condone the delay, as the assessee has changed the CAs/Advocates as per his own choice. The ld DR also relied on the judgment of Hon`ble Supreme Court in the case of Majji Sannemma @ Sanyasirao, vide civil appeal No. 7696 of 2021 dated 16.12.2021. Hence, ld DR contended that delay should not be condoned.

The Ld. Counsel has submitted the reasons for the effective delay of 365 days, which is mentioned in the affidavit and petition for condonation of delay stating that because of mistake of CAs/Advocates of the assessee, the so much delay has occurred. The assessee`s CAs/Advocates admitted this fact that they had committed mistake, therefore ld Counsel contended that assessee should not be penalized because of the mistake committed by his CAs/Advocates. The relevant para of the petition where the assessee`s Chartered Accountant admitted that he had committed mistake, is reproduced below for ready reference: “In his Affidavit the Accountant admitted the facts that he had not updated the e-mail address of C.A. Shri Shailesh Lakhankiya, did not communicate the service of notice by CIT(A) on his email ID either to assessee or to C.A., Shailesh Lakhankiya.”

From the above facts, it is vivid that delay has occurred because of the mistake committed by assessee`s Chartered Accountant. We are of the view that assessee should not be penalized because of the mistake committed by his Chartered Accountant. For that reliance can be placed on the decision of I.T.A.T., 'C' Bench, Kolkata in the case of M/s Garg Bros. Pvt. Ltd. & Others vs. DCIT [ITA Nos.2519 to 2521/Kol/2017, order dated 18.04.2018], wherein under similar set of facts and reasons, the Hon'ble Tribunal was pleased to condone the delay of 211 days by holding as under: "3. We have heard both the parties on this preliminary issue. Having regard to the reasons given in the application for condonation of delay, we are of the considered opinion that assessee was under a bona fide belief that the impugned order of Pr. CIT was not appealable before this Tribunal since they were not advised by their Tax Consultants about this legal right. Later on, when a Senior Lawyer advised them to file an appeal, the assessees ITA.234/SRT/2023/AY.2014-15 Pankajbhai K. Savani immediately took steps to file the appeals. Therefore, the delay caused. We note that delay was occurred because of the wrong advice of the Tax Professional for which assessees cannot be penalized. For the ends of justice, we condone the delay and admit the appeal for hearing.”

In the case of Perumon Bhagvathy Devaswom, Perinadu Village v. Bhargavi Amma (Dead) by LRs, (2008) 8 SCC 321, the Hon'ble Supreme Court had enunciated certain principles which are applicable while considering applications for condonation of delay under Section 5 which may be summarized as follows:  The words "sufficient cause", as appearing in Section 5 of Limitation Act, should receive a liberal construction when the, delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the applicant/appellant, in order to advance substantial justice. The words "sufficient cause” for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case.  The decisive factor in condonation of delay is not the length of delay but sufficiency of a satisfactory explanation.  The degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses.  Want of 'diligence' or 'inaction' can be attributed to an applicant/appellant only when something, required to be done by him, is not done. When nothing is required to be done, courts do

Therefore, in assessee`s case under consideration 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 this appeal. We are of the considered opinion that in the interest of justice, the delay deserves to be condoned. We, accordingly, condone the delay.

On merits, Learned Counsel submitted that order passed by the Ld CIT(A) is an ex parte order without adjudicating the various issues on merits. The Ld. CIT(A) has not considered the facts narrated in the statement of facts and also not considered the facts narrated in assessment order. The Ld. CIT(A) has passed the ex parte order because the assessee has not filed grounds of appeal, hence Ld. CIT(A) dismissed the appeal of the assessee, stating that assessee’s appeal is defective and adjudication cannot be made without any grounds of appeal. The assessee has changed three CAs/Advocates and in this process, there was a communication gap, and as a result, the assessee

The Ld. DR for the Revenue submitted that of course, it is the choice of the assessee to change the CAs/Advocates but somebody should appear before the Ld. CIT(A), however the assessee has failed to do so, therefore appeal of the assessee may be either dismissed or remitted 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. That is ld. CIT(A) did not pass order on merit based on the material available on record. Hence, we are of the view that one more opportunity should be given to the assessee to plead his case before the ld. CIT(A). 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 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. For statistical purposes, the appeal of the assessee is treated as allowed.