SMT. HEENABEN MAHESHBHAI GADHETHARIYA,RAJKOT vs. THE ITO WARD-3 (1) (1), RAJKOT, RAJKOT

At the beginning of hearing, it is noted that the Registry has noted that the appeal filed by the assessee is time barred by 59 days. To explain the delay, the assessee has filed an affidavit stating among other that, the delay was caused mainly because of omission on the part of her consultant in not attending the proceedings before the ld.CIT(A) and not complying with various notices issued by the Department from time to time. The assessee was not aware of the appellate proceedings and the outcome thereof, and because registered email id was of her consultant, the fate of the appellate proceedings was not in the knowledge of the assessee. The ld.counsel for the assessee therefore submitted that the assessee on getting the appellate order, immediately approached another consultant, and filed the present appeal, and in the meanwhile, the delay of 59 days was occurred, which is genuine and justifiable to condone, and to take up appeal of the assessee for adjudication on merits.

On the other hand, the ld.DR objected to condone the delay in filing the present appeal, as the assessee had remained absence continuously both before the AO and the ld.CIT(A), despite repeated opportunities having been given, and such non-serious and dormant litigant deserve no leniency in law, and therefore, condonation of the impugned delay is to be rejected.

After hearing both the sides, we find from the affidavit of the assessee that the impugned delay of 59 days caused mainly due to inaction on the part of the assessee’s earlier consultant in attending the proceedings before the first appellate authority or complying with the various notices issued to the assessee. The assessee was not kept abreast of the appellate proceedings by her earlier consultant, and when ultimately the CIT(A)’s order reached at the address of the assessee, she came to the knowledge of the same. The assessee immediately engaged another advocate and filed the present appeal before the ITAT, and in the process, 59 days of delay was caused in filing the appeal. We find, the reasons attributed by the assessee for the impugned delay, is justifiable and unintentional so as to condone the delay of 59 days, because the assessee is gaining nothing by not filing the appeal in time before the Tribunal. On the other hand, if the appeal is not filed before the Tribunal, then the assessee shall be fastened with huge tax and penalty in view of nature of addition made under section 69A read with section 115BBE of the Act. Therefore, to meet ends of justice, we condone the delay of 59 days in filing the appeal before the Tribunal, and proceed to adjudicate the appeal of the assessee on merit.

The grounds raised in the appeal reads as under:

At the outset, the ld.counsel for the assessee argued that the primary rule of principles of natural justice has been violated in the present case, because the ld.CIT(A) without giving proper opportunity of being heard to the assessee, and even without considering the material available on record, passed the exparte order, and therefore, the order passed by the Ld.CIT(A)are in violation of fundamental rights of the assessee of being heard. He submitted that during the assessment proceedings the assessee had filed written submissions dated 28.6.2019 and furnished complete details of the source of cash deposits, which were treated as unexplained credit entries and taxed the same under section 69A of the Act read with section 115BBE of the Act by the AO. Therefore, in the absence of non-consideration of material placed on record and absence of fair and reasonable opportunity of hearing, the impugned order of the CIT(A) is illegal and liable to be set aside, and the claim of the assessee should be allowed in terms of material placed on record.

On the other hand, the ld.DR defended the order of the ld.CIT(A) and drew our attention to page nos.4 and 4 of the impugned order, where the ld.CIT(A) has given reasons for passing the ex parte order due to non-prosecution.

We have heard rival submissions and gone through the orders of the Revenue authorities. We have also gone through the details which were furnished by the assessee before the Revenue authority during the assessment proceedings, copies of which are placed in PB Page No.23 to 59. Prima facie it appears from the order of the ld.CIT(A), the reason for ex parte proceedings mentioned by the ld.CIT(A) in his impugned order was that the assessee was given repeated opportunities, but did not furnish any documents/evidences, and therefore, the ld.CIT(A) accepted the decision of the AO as such. However, the material available with us suggest otherwise. It appears that the ld.CIT(A) has missed to consider the details furnished by the assessee while passing appellate order and outrightly accepted the finding of the AO. In this regard, it is to be noted that section 250(5) clearly provides the order of the ld.CIT(A) disposing of the appeal shall be in writing and shall state the points for determination, and the decision thereon and the reason for the decision. Therefore, we find the impugned order of the ld.CIT(A) is not in consonance with provisions of section 250(5) of the Act, which require the ld.CIT(A) to pass a speaking order. No doubt on the face of the record, it suggests that the assessee had furnished the details with regard to the dispute and filed written submissions, however, the ld.CIT(A) did not consider the same while passing the impugned order.

In the result, the appeal of the assessee is allowed for statistical purpose.