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IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH (SMC), SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER ITA No. 262/Srt/2022 (Assessment Year 2015-16) (Physical hearing) Shri 108 Gol Visha Shrimali Jain D.C.I.T., (CPC), Charities Surat, Bangalore. Vs. Jain Wadi Bh Bhulka Bhavan School, Anand Mahal Road, Adajan, Surat-395009. PAN No. AABTS 3025 N Appellant/ assessee Respondent/ revenue
Assessee represented by Shri Sapnesh Sheth, CA Department represented by Shri Vinod Kumar, Sr. DR Date of hearing 08/06/2023 Date of pronouncement 08/06/2023 Order under Section 254(1) of Income Tax Act PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the assessee is directed against the order of learned National Faceless Appeal Centre, Delhi (NFAC)/Commissioner of Income Tax (Appeals) (in short, the ld. CIT(A)) dated 13/12/2021 for the Assessment Year (AY) 2015-16. The assessee has raised following grounds of appeal: “1. On the facts and circumstances of the case as well as law on the subject, the ld. CIT(A) has erred in passing ex parte order without providing reasonable opportunity of hearing to assessee. 2. On the facts and circumstances of the case as well as law on the subject, the ld. CIT(A) has erred in confirming the action of assessing officer in passing order u/s 143(1) of the I.T. Act. 3. On the facts and circumstances of the case as well as law on the subject, the ld. DCIT(CPC) while issuing intimation order u/s 143(1) of the act has erred in determining total income of assessee at Rs. 12,46,394/- by disallowing sum of
ITA No. 262/Srt/2022 Shri 108 Gol Visha Shrimali Jain Charities Surat Vs DCIT(CPC)
Rs. 11,93,059/- claimed as application of income and Rs. 2,42,185/- claimed as accumulated of income u/s 11(1)(a) of the I.T. Act, 1961 on the ground that registration certificate u/s 12AA was not submitted. 4. It is therefore prayed that above addition made by assessing officer and confirmed by CIT(A) may please be deleted. 5. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of hearing of the appeal.” 2. Rival contentions of the learned representatives have been heard and record perused. At the outset of hearing, the learned Authorised Representative (ld. AR) of the assessee submits that the impugned order by the ld. CIT(A), NFAC was passed on 13/12/2021 and the present appeal was filed on 05/09/2022, thus there is delay of 206 days in filing the appeal, for which an application for condonation of delay has been filed. The ld. AR of the assessee submits that at the time of filing of appeal before the First Appellate Authority, the e-mail address and telephone number of Chartered Accountant Shri Sandeep Van was given, who has not informed the assessee about passing of order of ld. CIT(A). The assessee came to know about passing of order only on 16/08/2022, when the assessee tried to know the status of their appeal. The delay was occurred due to the fact that earlier consultant not informed the assessee about passing of such order nor he advised the assessee for filing appeal before the Tribunal. When assessee of their own, contacted him to know the status, only then the assessee was informed about dismissal of appeal. The delay is neither intentional nor deliberate but
ITA No. 262/Srt/2022 Shri 108 Gol Visha Shrimali Jain Charities Surat Vs DCIT(CPC)
for the reasons explained above. The assessee has no intention to disregard the statutory provisions prescribed in the Income Tax Act. The ld. AR of the assessee prayed for condoning the delay and to consider the merit of the case. 3. The ld. AR of the assessee further submits that the assessee has good case on merit and is likely to succeed if the assessee is given one more opportunity to contest the case on merit. On merit, the ld. AR of the assessee submits that the ld. CIT(A) dismissed the appeal of assessee in an ex parte proceeding without discussing the merit of the case. The assessee-trust is having registration under Section 12A dated 01/08/1996 which has not been withdrawn and still valid. The assessing officer /CPC while processing return of income of assessee disallowed the application of income. The ld AR for the assessee submits that he undertakes on behalf of assessee to be more vigilant in attending the hearing and making due compliance of the notices of lower authorities. 4. On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the revenue submits that the assessee has casual in attending the hearing. The ld. CIT(A) has given more than five opportunities, despite giving sufficient opportunity, no compliance was made. On condonation of delay, the ld. Sr. DR for the revenue submits that the assessee has not explained the delay properly in filing appeal properly.
ITA No. 262/Srt/2022 Shri 108 Gol Visha Shrimali Jain Charities Surat Vs DCIT(CPC)
The assessee is blaming their own consultant. The duty owe to the assessee to keep the trac of their appeal/legal proceedings. 5. I have considered the submissions of both the parties and perused the record carefully. There is no dispute that the impugned order was passed by ld. CIT(A) on 13/12/2021 and present appeal is filed on 05/09/2022, thus there is delay of 206 days in filing appeal. Before me, the ld. AR of the assessee vehemently submitted that the assessee was not intimated about dismissal of appeal by their consultant. The assessee on coming to know about dismissal of appeal immediately filed appeal. Considering the contents of application for condonation of delay that the delay is not intentional nor deliberate rather the assessee is not going to be benefitted in filing appeal belatedly. Therefore, considering the principle that when technical consideration and cause of natural justice are pitted against each other, the cause of substantial justice may be preferred as has been held by the Hon'ble Apex Court in Collector, Land Acquisition Vs Mst Katiji 167 ITR 471 (SC). Thus, in view of the aforesaid observation, the delay of 206 days in filing appeal is condoned. Now adverting to the merit of case. 6. I find that the ld. CIT(A) passed the order in an ex parte proceeding. The ld. AR of the assessee explained that their consultant has not informed that and now the assessee will be more vigilant in making timely compliance before the First Appellate Authority. Considering the
ITA No. 262/Srt/2022 Shri 108 Gol Visha Shrimali Jain Charities Surat Vs DCIT(CPC)
principles of natural justice, in my view the assesse deserve one more opportunity of hearing, therefore, the grounds of appeal raised by the assessee is restored back to the file of ld. CIT(A) to decide the appeal on merit afresh. The assessee is also directed to be more vigilant in future and to make timely compliance and file necessary evidence and not to seek adjournment without any valid reason. Hence, grounds of appeal raised by the assessee are allowed for statistical purposes only. 7. In the result, this appeal of assessee is allowed for statistical purposes only. Order announced in open court on 8th June, 2023 at the time of hearing. Sd/- (PAWAN SINGH) JUDICIAL MEMBER Surat, Dated: 08/06/2023 *Ranjan Copy to: 1. Assessee – 2. Revenue – 3. CIT 4. DR 5. Guard File By order
Sr. Private Secretary, ITAT, Surat