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Income Tax Appellate Tribunal, “D” BENCH, AHMEDABAD
Before: & SHRI NARENDRA PRASAD SINHA
IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, AHMEDABAD BEFORE Ms. SUCHITRA RAGHUNATH KAMBLE, JUDICAL MEMBER & SHRI NARENDRA PRASAD SINHA, ACCOUNTANT MEMBER आयकर अपील सं./I.T.A. No. 39/Ahd/2024 (िनधा�रण वष� िनधा�रण वष� / Assessment Year : 2011-12) िनधा�रण वष� िनधा�रण वष� Bhardwaj Harshvadan ITO बनाम बनाम/ बनाम बनाम Patel Ward – 1(2)(3), Vs. 201, A Block, Jasper Now Ward – 1(2)(1), Homes, Nr. Sears Towers, Vadodara Vadodara, Gujarat, 390015 �थायी लेखा सं./जीआइआर सं./PAN/GIR No. : ARHPP4034D (Appellant) .. (Respondent) Shri Tej Shah, AR अपीलाथ� ओर से /Appellant by : ��यथ� क� ओर से/Respondent by : Shri Urjit Shah, Sr. DR 20/06/2024 Date of Hearing Date of Pronouncement 01/07/2024 O R D E R PER SHRI NARENDRA PRASAD SINHA, AM: 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
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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.
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Now, the assessee is in appeal is before us.
The assessee has taken following grounds in this appeal:
“1. The CIT(A) erred in law and in the facts of the case in not condoning the delay in filing of the appeal by the appellant and dismissing the same in limine without giving an opportunity to the assessee for presenting the sufficient cause that prevented the appeal being filed within the limitation period. 2. The CIT(A) erred in law and in the facts of the case in confirming the order of the AO in making addition of Rs. 70,04,456/- being unexplained investment u/s 69 of the act. 3. The CIT(A) erred in law and in the facts of the case in confirming the order of the AO in making addition of Rs. 2,54,456/- being unexplained commission income.” 7. 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).
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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:
“1. The appellant request for condonation of delay in filing the appeal before your honour. Actually all the papers/documents required for filing the appeal was handed over to then, A.R. The appellant trusted the then AR for filing the appeal. The appellant was under impression that AR would have filed the appeal within prescribed time limit. When the appellant visited the office of the then A.R. for collecting the acknowledgement for filing the Form No. 35, it came to the knowledge of the appellant from office staff of the then AR that appeal is filed or not it came to know after verification from file/records. 2. On verification of the file/records from AR's office, the staff has confirmed that appeal is not filed within prescribed time. After came into knowledge that appeal has not been filed within prescribed time limit now the appellant moved to find another consultant for filing the appeal. Now, the undersigned appellant has appointed the new AR of Ahemadabad base and requested for condonation of delay. Since the AR has to collect the information, study the case, & prepare the submission/relevant documentation, the delay taken place. The appellant prays your honour to admit the appeal under the principle of natural justice and peculiar circumstance of the case."
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.
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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
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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.
This Order pronounced on 01/07/2024
Sd/- Sd/- (SUCHITRA RAGHUNATH KAMBLE) (NARENDRA PRASAD SINHA) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad; Dated 01/07/2024 S. K. SINHA True Copy आदेश क� �ितिलिप अ�ेिषत आदेश क� �ितिलिप अ�ेिषत/Copy of the Order forwarded to : आदेश क� �ितिलिप अ�ेिषत आदेश क� �ितिलिप अ�ेिषत 1. अपीलाथ� / The Appellant ��यथ� / The Respondent. 2. 3. संबंिधत आयकर आयु� / Concerned CIT 4. आयकर आयु�(अपील) / The CIT(A)- 5. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड� फाईल / Guard file. आदेशानुसार आदेशानुसार/ BY ORDER, आदेशानुसार आदेशानुसार
उप/सहायक पंजीकार उप सहायक पंजीकार (Dy./Asstt. Registrar) उप उप सहायक पंजीकार सहायक पंजीकार आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण, अहमदाबाद आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण अहमदाबाद अहमदाबाद / ITAT, Ahmedabad अहमदाबाद