MUKHTIYARODIN AJIMODIN MALEK,ANAND vs. THE ITO, WARD-3(4), PETLAD

The assessee has raised the following grounds of appeal :-

The return of income was filed on 25.09.2008 declaring total income of Rs.90,974/-. The assessment order under Section 143(3) of the Income Tax Act, 1961 was passed on 22.12.2010 on a total income of Rs.90,974/-. The Assessing Officer passed order under Section 143(3) read with Section 147 of the Act on 20.03.2013 and income was assessed at Rs.1,92,720/-. The order under Section 263 of the Act was passed ex-parte on 30.03.2015. The assessment order under Section 144 read with Section 263 of the Act was passed on 28.01.2016 thereby totalling the income at Rs.34,82,500/- thereby assessing gross receipts instead of income out of gross receipts.

Being aggrieved by the Order under Section 144 read with Section 263 of the Act which is the Assessment Order in consequential to order passed under Section 263 of the Act by the PCIT, the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee.

The Ld. AR submitted that during the proceedings under Section 263 of the Act, the assessee was kept in dark by his AR (CA Shri Gopal Shah). The Ld. AR further submitted that during the assessment proceedings under Section 143 read with Section 263 of the Act also the assessee was not informed anything by his AR. The assessee came to know about passing the order under Section 263 and under Section 143 read with Section 263 of the Act when HDFC Bank Limited informed the assessee about the attachment of his Bank account for outstanding demand of Rs.33,12,029/- while informing the same on 29.11.2019. The assessee immediately on CPC Portal found the e-mail of mobile nos. of his previous CA Shri Gopal Shah. The assessee approached the said CA who did not give proper answer and told the assessee that he will look into the matter. The assessee waited for 15 days then approached another CA who took him to Income Tax Office, Petlad and came to know that the order under Section 263 and order under Section 144 read with section 263 of the Act were passed and demand was raised due to passing of the order. On 20.12.2019, the assessee requested the Income Tax Office to give copy of both the orders and obtained the

The Ld. DR opposed to the delay as it is more than 1430 days delay which is exorbitant delay. The Ld. DR relied upon the order of the CIT(A).

We have heard both the parties and perused all the relevant material available on record. It is pertinent to note that the delay in filing the appeal before the CIT(A) has been elaborately explained and in fact after verifying the records, it appears that the fault was on the part of the earlier CA who has been engaged by the assessee and due to the negligence of earlier CA the assessee suffered. But from the perusal of the records, it appears that when the assessee came to the knowledge of the order with the help of subsequent CA, the assessee within 15 days has filed the appeal before the CIT(A). Due to Pandemic, the subsequent CA expired and that is why the assessee’s delay condonation application was filed later. The CIT(A) who has taken this aspect for condoning the delay. Though the delay is exorbitant the peculiar facts and circumstances which is exceptional in nature in the present case cannot be treated as contrary to the assessee’s right to contest the appeal on merit. Therefore, in the interest of justice, it will be appropriate to condone the delay in filing the appeal before the CIT(A). The CIT(A) will decide the matter on merit as per due process of law.

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