SHRI KHURSHID AHMED WANI S/O GULAM MOHD WANI,SRINAGAR vs. INCOME TAX OFFICER WARD-2, SRINAGAR

Per Dr. M. L. Meena, AM:

This appeal has been filed by the assessee against the order of the Ld. CIT(A)/National Faceless Appeal Centre (NFAC), Delhi dated

25.03.2022 in respect of Assessment Year 2012-13 challenging therein the

2 I.T.A. No. 191/Asr/2023 Khurshid Ahmed Wani v. ITO action of the ld. CIT(A) in confirming the ex-parte assessment order passed

by the AO u/s 144/147 of the Income Tax Act, 1961 without granting

adequate opportunity of being heard to the assessee against the principle

of natural justice.

assessee has explained that the delay in filing of the appeal has been due

to non service of the impugned order issued by the ld. CIT(A) as the

appellant is non-resident doctor by profession staying in Saudi Arabi since

1990. In support of the condonation application, the ld. AR has filed a

written application with the support of an affidavit placed on record dated

24.07.2023 which reads as under:

“The assessee is doctor by Profession and Non-resident Indian residing abroad since 1990. The assessment for the year under consideration was completed under section 144 read with section 147 of the Income tax Act, 1961, vide order dated 04.12.2019 by the Income tax Officer, Ward 3(2), Srinagar. Due to non receipt of notices by the assessee, the Ld. A.O. has made assessment u/s 144 r.w.s. 147 of the Act and passed ex-parte order. Thereafter, the appeal was filed before the Ld. CIT(A). Since the assessee was resides abroad, the notices were sent at the Indian address/ email by the National Faceless Appeal Centre, which were not assessable to the assessee at abroad. The Ld. CIT(A) also passed the ex-parte order and same was uploaded on e-portal.

The assessee came to know only when the notice for attachment was issued and his relative informed him about the same. Thereafter, the assessee immediately downloaded the order and filed appeal before the Hon'ble Tribunal. The assessee also filed an affidavit in support of his petition that he is NRI and had not received the order in time. Thus the assessee had sufficient cause not to

3 I.T.A. No. 191/Asr/2023 Khurshid Ahmed Wani v. ITO file the appeal in time and on these facts the present petition may be allowed. Useful support is also drawn from the case of Dr.S.A.Rashid, Kulgam, Kashmir versus ITO Ward, Anantnag Kashmir in ITA No.632/Asr/2015 for the assessment year 2002-03 wherein the Hon'ble Bench while condoning the delay of 932 days, placed reliance on the decision of Hon'ble Supreme Court decision in the N. Balakrishnan versus M. Krishmaruity, AIR 1998 SC 3222 wherein it has been held:-

"Rules of limitation are not meant to destroy the right of the parties. They are meant to see that the parties do not resort dilatory tactics but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury.

Respectfully relying on the decision of the Hon'ble Apex Court, we consider the petition for condonation of the delay for 932 is condoned.

In view of the above decision, it is humbly prayed that the delay in filing of appeal may kindly be condoned.”

2.1 Considering the bonafide reason for delay in filing appeal, duly

supported with affidavit, the delay of 399 days in filing appeal is hereby

condoned and appeal is admitted on merits for adjudication.

assessee is a non-resident doctor staying in Saudi Arabi and he has not

filed return of income as appellant has not been earning any income in

India. The ld. AO on the basis of CIB/AIR information alleged that the

appellant has made investment in purchase of Flat amounting to

Rs.7,90,000/- in Horizon Construction, Jammu and accordingly, issued

notice u/s 148 of the I.T. Act. The AO has passed an order ex-parte qua the

assessee u/s 144/147 of the Act with addition of Rs.7,90,000/- vide order

4 I.T.A. No. 191/Asr/2023 Khurshid Ahmed Wani v. ITO dated 04.12.2019 against the principle of natural justice. He further

submitted that the ld. CIT(A) NFAC, Delhi has also passed appellate order

ex-parte qua the assessee dismissing the appeal without affording

adequate opportunity of being heard to the appellant. He pleaded that the

matter may be remanded back to the AO to pass denovo assessment order

after granting adequate opportunity of being heard to the assessee. He

undertakes that the assessee cooperate in the proceedings before the

Assessing Officer.

failed to rebut the contention raised by the ld. counsel that the appellant

was a non-resident doctor and neither of the notices issued by the

Assessing Officer or by the ld. CIT(A) and the impugned order was served

on the appellant assessee being a non-resident doctor living in Saudi Arabi

since 1990.

and the impugned orders. Admittedly, the AO and the ld. CIT(A) has

passed the orders ex-parte qua the assessee without mentioning the

factum of date of service of the notices to the effect of granting an

opportunity of being heard to the assessee in view of the principle of

5 I.T.A. No. 191/Asr/2023 Khurshid Ahmed Wani v. ITO natural justice. We, therefore, consider it deem fit to remand back the

matter to the file of the AO to pass the assessment order denovo after

granting adequate opportunity of being heard through proper services of

notice on the assessee. The AO is directed to make sure to issue a show

cause notice to the appellant assessee to bring in notice of the assessee

the proposed additions before passing the assessment order. At the same

time, the assessee is directed to cooperate in the assessment proceedings

before the AO by filing the requisite information and documents called for

examination during the course of scrutiny proceedings for the completion of

the assessment. Accordingly, the matter is restored back to the file of the

AO.

purposes.

Order pronounced in the open court on 26.07.2023

Sd/- Sd/- Sd/ (Anikesh Banerjee) (Dr. M. L. Meena) Judicial Member Accountant Member *GP/Sr./P.S.* Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals)

6 I.T.A. No. 191/Asr/2023 Khurshid Ahmed Wani v. ITO (5) The DR, I.T.A.T. True Copy By Order