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Income Tax Appellate Tribunal, SURAT BENCH, SURAT
Before: SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM
आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeals filed by the assessee, pertaining to the Assessment Year (AY) 2014-15, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals)-1, Surat [in short “the Ld. CIT(A)”], Surat, in Appeal No. CIT(A)-1/11324/2016-17, dated 03.02.2020, which in turn arises out of an assessment order passed by Assessing Officer u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), dated 16.12.2016.
At the outset, we note that appeal filed by the assessee is barred by limitation by one thousand ninety five days (1095) days. The assessee moved a petition requesting the Bench to condone the delay. The contents of the petition for condonation of delay are reproduced below:
ITA.234/SRT/2023/AY.2014-15 Pankajbhai K. Savani “1. I am assessed with Income-tax Officer, Ward-2(3)(3), Surat, MY Permanent Account No. is BERPS5247H. 2. The assessment order under section 143(3) of the Income-tax Act, 1961 for A.Y.2014-15 was passed by Income-tax Officer, Ward- 2(3)(3), Surat. Against this order the appeal was filed before Commissioner of Income-tax (Appeals)-l, Surat. 3. The appeal was dismissed by Hon'ble Commissioner of Income tax (Appeal)-4, Surat by order dtd. 03.02.2020 which was e-mailed on email address vggodhani@rediffmail.com by Hon'ble Commissioner of Income tax (Appeal)-l, Surat. 5. As per the Form No. 35 submitted online, the Address for communication of Notice is as under: C-201, Sai Milan Residency, Sudama Chowk, Mota Varachha Surat 395006 E-mail: cashailesh@hotmail.com 6. The E-mail Address on ITBA Portal is of old Accountant who had left the job and is no longer in contact with me. Accordingly in Form No. 35 of Appeal the address was mentioned as under: C-201, Sai Milan Residency, Sudama Chowk, Mota Varachha Surat395006 E-mail: cashailesh@hotmail.com 7. The Notice of hearing by Commissioner of Income-tax (Appeals, was served on 20.12.2019 and 31.01.2020 on the e-mail address of old accountant. The Notices were not sent on the physical address or the e-mail address as per Form Xo. 35. Hence. I could no: submit the Notice to my C.A.” 3. Therefore, Ld Counsel submitted that in assessee’s case the ld. CIT(A) passed the order on 03.02.2020, despite the facts that notice dated 20.12.2019 fixing the hearing on 08.01.2020 and notice dated 23.01.2020, fixing the hearing on 31.01.2020, were served electronically on the e-mail address of the Accountant of assessee, at vggodhani@rediffmail.com. The copy of status report from e-filing portal are enclosed (Page 4 to 6). In Form No. 35 the assessee had requested to issue the notice on following address: C-201, Sai Milan Residency, Sudama Chowk, Mota Varachha,
ITA.234/SRT/2023/AY.2014-15 Pankajbhai K. Savani Surat - 395006 E-mail Address: cashailesh@hotmail.com Thus, the notices were not served on the specific address given in Form No. 35. No physical notice was served on assessee by Commissioner of Income-tax (Appeals). The assessee approached AR, Ashwin Parekh for pending appeal before CIT(A) for A.Y. 2014-15 and A.Y. 2015-16 and on 03.04.2023, the AR verified the status of pending appeal of A.Y. 2014-15 and A.Y. 2015-16 and during this process of verification the AR came to know that appeal of A.Y. 2014-15 was already disposed of without any representation from assessee. The AR informed these facts to assessee. At the assessment stage, the Accountant Vipulbhai Gordhanbhai Godhani filed the Return and Advocate Tilak Radadiya represented the case, the Appeal was filed by another Chartered Accountants Shri Shailesh Lakhankiya in-time. The Accountant had left the job. The CA Shailesh Lakhankiya requested the Accountant to update the e-mail address and communication details on e-filing portal but the Accountant did not update the profile by amending the e-mail address. Hence, all the notices could not be communicated to Shailesh Lakhankiya C.A. Therefore, the notice and order passed by CIT(A)-1, Surat sent on email id of Vipulbhai Gordhanbhai Godhani, which were not communicated to Shri Pankajbhai Savani or AR. The Affidavit of assessee is enclosed (Page 7 to 11 of paper book). The Affidavit of Accountant Vipulbhai Gordhanbhai Godhani is enclosed (Page 12 to 17 of paper book). 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. The ld Counsel for the assessee also relied on the following decisions:
ITA.234/SRT/2023/AY.2014-15 Pankajbhai K. Savani (i) Sanakruti Enterprises, ITA No.22/SRT/2021, order dated 13.07.2021. (ii) Smt. Harshaben Mukeshbhai Patel, ITA No.2874/Ahd/2016, order dated 04.09.2020. (iii) Aina Construction, ITA No.476/SRT/2018, order dated 11.01.2019. 4. 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.
We have heard both the parties on this preliminary issue. We note that Ld. CIT(A) has passed the order on 03.02.2020 and the assessee supposed to file the appeal within the two months from the date of order of Ld. CIT(A), that is, appeal should have been filed by the assessee on or before 03.04.2020. However, the appeal has been filed on 11.04.2023; therefore, there is a delay of 1095 days. We note that out of such delay of 1095 days, the 730 days delay is attributable to Covid-19 Pandemic. As per the order of Hon'ble Supreme Court in Suo- Moto Writ Petition No. 3 of 2020, the Covid periods starts from 15.03.2020 and ends on 28.02.2022, therefore if we exclude the delay of 730 days from the total delay of 1095 days then the balance delay
ITA.234/SRT/2023/AY.2014-15 Pankajbhai K. Savani comes at 365 days only. Therefore, in this appeal, there is effective delay of 365 days only.
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.” 7. 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.” 8. 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
ITA.234/SRT/2023/AY.2014-15 Pankajbhai K. Savani not expect the applicant/appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court regularly to ascertain the current position but await information from his counsel about the listing of the appeal.
To quote their lordships' decision verbatim in the case cited supra - "13....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, and the type of case. The words "sufficient cause" in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant." 9. 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
ITA.234/SRT/2023/AY.2014-15 Pankajbhai K. Savani could not inform the Department the latest address and e-mail id, on which the notices should be sent to the him, therefore assessee could not plead his case before the Ld. CIT(A).
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.
ITA.234/SRT/2023/AY.2014-15 Pankajbhai K. Savani 13. In the result, appeal filed by the assessee is allowed for statistical purposes.
Order is pronounced on 11/09/2023 in the open court.
Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat �दनांक/ Date: 11/09/2023 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat