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Income Tax Appellate Tribunal, DELHI BENCH: SMC: NEW DELHI
Before: SHRI CHANDRA MOHAN GARG & SHRI PRADIP KUMAR KEDIA
ORDER Per Chandra Mohan Garg:- This appeal filed by the assessee is directed against the order dated 27.04.2022 of the Ld. NFAC, New Delhi, relating to Assessment Year 2011-12. Application of assessee seeking condonation of delay 2. The ld. assessee’s representative (AR) submitted that the appeal against order dated 27.04.2022 ought to have been filed on or before 26.06.2022 but due to lack of knowledge of the fact of dismissal appeal by the ld. CIT(A) was not came to the notice of assessee as the order was send through mail only and assessee has not access to the mail due to miser means and lack of knowledge. The ld. AR submitted that the assessee came to know about the dismissal of first appeal on receipt of penalty notice received on 18.10.2022 and the assessee filed appeal on 03.01.2023 by the delay of 191 days which may kindly be condoned and appeal of assessee may kindly be admitted for hearing. Assessee has also filed his affidavit supporting above facts. The ld. Senior DR opposed to the condonation of delay.
On careful consideration of above submissions, the assessee first of all, we note that the assessee is a less literate person earning income from running a ration shop/food grains Govt. shop. The assessee is not getting anything except harassment in filing delayed appeal. The ld. Senior DR has not controverted that the order of NAFC are sent through mail and in a situation when the assessee due to his lack of means and knowledge has no access to the electronic communication mode then the delay caused due to the lack of knowledge of dismissal appeal by the ld. CIT(A) is a sufficient cause explaining the delay of 191 days. There is no rebuttal affidavit on behalf of the revenue countering the affidavit filed by the assessee therefore we have no hesitation to held that the assessee has successfully explained delay of 191 days in filing appeal before the Tribunal. Hence the delay is condoned and appeal is admitted for hearing.
The assessee has raised following grounds of appeal:-
1. That on the facts and the circumstances of the case, ld. CIT(A) has erred in appreciating the facts of the case that assessment on the same issue has already been done by the ITO, ward 47(2) New Delhi.
2. That on the facts and in the circumstances of the case the ld. CITA() erred in law and on the facts while confirming the addition of Rs. 17,87,000 on account of cash deposits in a Saving Bank Account.
5. The ld. assessee representative (AR) submitted that the assessment order under challenge in this appeal has been filed by ITO, Ward 63(3) New Delhi on 06.08.2018. He further submitted that prior to that for the same AY 201-12 ITO ward 47(2), Delhi have already passed reassessment order u/s. 147/143(3) of the Act on 28.09.2018 much prior to the passing of impugned assessment order dated 06.08.2018 for the same assessment year therefore subsequent assessment order is not valid being void and nullity.
6. Replying to the above, the ld. Senior DR submitted written report vide dated 06.06.2023 by ITO ward 63(1), New Delhi and submitted that the assessee after completion of the assessment dated 06.12.2018 filed a copy on 07.12.2018 that he has been assessed on 28.09.2018 by ITO, Ward 47(2), Delhi. The jurisdiction of the PAN of the assessee with the erstwhile Ward-63(3), Delhi and at present Ward-63(1), Delhi after restructuring. However, he did not controvert a clear factual position that for AY 2011-12 the Assessing Officer ITO, Ward 47(2), Delhi passed reassessment order on 28.09.2018 and thereafter the ITO, Ward 63(3) also passed second assessment order for the same AY 2011-12 u/s. 147/144 of the Act ex-parte qua assessee. In such a situation subsequent ex-parte reassessment order cannot be held as sustainable and valid being bad in law. Therefore grievance of assessee is allowed and impugned assessment order dated 06.12.2018 and consequent first appellate order dated 27.04.2022 are quashed being not valid and unsustainable. Accordingly, ground no. 1 of assessee is allowed.
7. Since we have granted relief to the assessee by allowing legal ground no. 1 of assessee and neither the ld. representatives of both the sides have submitted any arguments on ground no. 2 on merits nor we find it unnecessary to dwell upon and adjudicating the same in absence of any submissions by the parties. Therefore, ground no. 2 on merits is not adjudicating and left open.
8. In the result, the appeal of the assessee is partly allowed. Order pronounced in the open court on 07.06.2023. Sd/- Sd/- (PRADIP KUMAR KEDIA) (CHANDRA MOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 07th June, 2023. NV/- Copy forwarded to : 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR // By Order //