BHARDWAJ HARSHVADAN PATEL,VADODARA vs. THE ITO, WARD-1(2)(3) NOW WARD-1(2)(1), VADODARA

This appeal is filed by the assessee against the order of the National Faceless Appeal Centre (NFAC), Delhi, (in short ‘the CIT(A)’) dated 11.08.2023 for the Assessment Year 2011-12.

As per Registry, there is a delay of 91 days in filing of this appeal. The assessee has filed an affidavit explaining that the order of the Ld. CIT(A) was received by him on 18.11.2023 and Harshvadan Patel vs. ITO] A.Y. 2011-12 - 2 – the time limit for filing the appeal before the Tribunal was expiring on 18.01.2024. The appeal filed by the assessee on 09.01.2024 was, therefore, within the limitation period and there was no delay. Further that there was change of Counsel during the period which led to this delay. The Revenue has not raised any objection to the condonation of delay. Considering the explanation of the assessee the delay is condoned.

The brief facts of the case are that no return of income for A.Y. 2011-12 was filed by the assessee. The AO had initiated proceeding under Section 147 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) on the basis of information that the assessee had jointly purchased an immovable property of Rs.70 Lacs during the F.Y. 2010-11. There was no response to the notice under Section 148 of the Act dated 27.03.2018 and no compliance was made by the assessee in the course of assessment proceedings. The assessment was completed ex-parte under Section 144 r.w.s. 147 of the Act on 26.12.2018 at total income of Rs.70,04,456/-. Additions of Rs.17,50,000/- on account of 1/4th share in the property purchased during the year, Rs.50Lacs in respect of investment in bonds/debentures and Rs.2,54,456/- in respect of commission income were made by the AO.

Aggrieved with the order of the AO, the assessee had filed an appeal before the First Appellate Authority, which was decided vide the impugned order.

Now, the assessee is in appeal is before us.

The assessee has taken following grounds in this appeal:

Shri Tej Shah, the Ld. AR of the assessee explained that there was a delay of 314 days in filing the appeal before the Ld. CIT(A) and that the Ld. CIT(A) had dismissed the appeal of the assessee without considering the merits of the case. He submitted that the reason for delay was explained in Form No.35 but the Ld. CIT(A) did not condone the delay and dismissed the appeal in limine. According to the Ld. AR, no opportunity was given to the assessee in the course of appeal to explain the reason for delay.

Per contra, the Ld. Sr. DR supported the order of Ld. CIT(A).

We have considered the rival submissions. It is found that there was a delay of 314 days in filing the appeal before the Ld. CIT(A). The assessee had explained the following reason for the delay in Form No.35:

The Ld. CIT(A) had considered the submission of the assessee and observed that the assessee did not submit a formal condonation petition seeking condonation of delay along with affidavit and documentary evidences in support of the reasons stated at Column No.15 of Form No.35.

It is found from the order of the Ld. CIT(A) that no opportunity was allowed by the Ld. CIT(A) to the assessee to explain the reason of delay nor was he ever asked to file an affidavit and the documentary evidences. It is, thus, found that assessee was not allowed any opportunity to explain the delay or to bring on record the supporting documentary evidences for the reason of delay as explained in Form No.35. The approach of the Ld. CIT(A) to dismiss the appeal on the ground of delay without allowing any opportunity to the assessee is not found fair and in accordance with the principle of natural justice. The assessee has filed an affidavit before us wherein the reason for delay before the Ld. CIT(A) has been explained in detail. We are of the considered opinion that the assessee has reasonably explained the reason for delay in filing the appeal before the ld. CIT(A).

Since, the appeal of the assessee was dismissed by the Ld. CIT(A) without allowing any opportunity of being heard, we deem it proper to set aside the matter to the file of the CIT(A) to decide the matter afresh on the merits of the case. A paper book has also been filed before us in support of the grounds as raised on merits of the case. Since these evidences were not placed before the lower authorities at any stage, the matter requires to be set aside for examination of these evidences. Accordingly, the Ld. CIT (A) is directed to examine the evidences filed by the assessee, examine the merits of the case and re-decide the matter after allowing a proper opportunity of being heard to the Harshvadan Patel vs. ITO] A.Y. 2011-12 - 6 – assessee. The assessee is also directed to appear before the Ld. CIT(A) and in case of any non-compliance by the assessee, the Ld. CIT(A) is free to decide the matter in the manner he deems fit.

In the result, appeal preferred by the assessee is allowed for statistical purposes.