ASHISH BANSAL,DELHI V. ITO, WARD-35(1), NEW DELHI

ITA 5272/DEL/2024

AI Insights

The case involves Ashish Bansal, a self-employed photographer, who appealed against the order of the Commissioner of Income Tax (Appeals) which had dismissed his appeal due to non-prosecution. The original assessment by the Assessing Officer treated deposits in Bansal's bank accounts as unexplained under section 69A read with section 115BBE of the Income Tax Act, 1961, leading to an addition of Rs.16,77,000 to his income. The CIT(A) dismissed the appeal without adjudicating on merits, citing non-prosecution despite multiple opportunities given to the appellant to appear. The Tribunal found that the CIT(A) erred in dismissing the appeal without considering the merits and that the delay in filing the appeal was not deliberate but due to the absence of professional assistance.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 474948 (ITAT-DELHI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2016-2017
• Other Referred Cases: HL Malhotra & Company Pvt. Ltd. Vs DCIT, Circle12, New Delhi, Collector, Land Acquisition, Anantnag & Anr. Vs Mst. Katiji and others, N. Balakrishnan Vs M. Krishnamurthy, CIT vs. Premkumar Arjundas Luthra HUF, MARC Laboratories Ltd. in ITA No.2731, 2732, 2733, 2730, 2734 & 2735/DEL/ 2022
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Department Lawyers: JAVED AKHTAR
• Keywords: Condonation of delay; Set aside; Opportunity of being heard; Reasonable cause
• Section: 148; 69A

Judgement Text

" 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘A’: NEW DELHI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER AND SHRI AVDHESH KUMAR MISHRA, ACCOUNTANT MEMBER ITA No.5272/Del/2024, A.Y. 2016-17 Ashish Bansal, 1551, Dinanath Building, Chandra Wal Road, Clock Tower New Delhi-110007 PAN: AKEPB2298R Vs. ITO, Ward-35(1), New Delhi (Appellant) (Respondent) Appellant by None Respondent by Mr. Javed Akhtar, CIT(DR) Date of Hearing 04/03/2025 Date of Pronouncement 12/03/2025 ORDER PER AVDHESH KUMAR MISHRA, AM This appeal for the Assessment Year (hereinafter, the ‘AY’) 2016-17 filed by the assessee is directed against the order dated 10.09.2024 passed by the Commissioner of Income Tax (Appeals), NFAC, New Delhi [hereinafter, the ‘CIT(A)’]. 2. The assessee has raised following grounds: “1. That on the facts and circumstances of the case the Ld. CIT(A) has erred in passing an ex parte order without considering that in this case, there was no deliberate attempt on the part of the appellate to, not to, reply to the notices of hearing. 2. That on the facts and circumstances of the case, the Ld. CIT(A) has erred in law in impliedly confirming the order of the A.O. by making the addition of Rs.16,77,000/-. ITA No.5272/Del/2024 Ashish Bansal 2 3. That the appellant prays leave to add, alter, amend any grounds of appeal.” 3. The relevant facts giving rise to this appeal are that the appellant assessee, self-employed photographer, filed his Income Tax Return (hereinafter, the ‘ITR’) on 30.03.2018 declaring income of Rs.2,81,688/-. Later on, the case was reopened, under section 148 of the Income Tax Act, 1961 (hereinafter ‘the Act’), on the basis of information received from the ITO, Ward 67(2), New Delhi that the assessee had deposited Rs.8,67,000/- and Rs.8,10,000/- in his bank accounts during the relevant year, which did not commensurate with his income as per the ITR. Thereafter, the Assessing Officer issued various notices to the assessee as detailed in para 2 of assessment order. During the course of assessment proceedings, the assessee ensured part compliances of two notices only. However, the AO was not satisfied with explanations of the assessee. Therefore, he treated the above- mentioned deposits aggregating to Rs.16,77,000/- (Rs.8,67,000/- plus Rs.8,10,000/-) as unexplained under section 69A r.w.s. 115BBE of the Act. Aggrieved, the assessee filed appeal before the CIT(A), who dismissed the appeal due to non-prosecution after providing 4 opportunities of being heard as detailed in para 4 of the impugned order. 5. We have heard the Ld. CIT-DR and have perused the material available on the record. At the outset, the Ld. CIT-DR drew our attention to the fact that this appeal was not filed in time and there was delay of 08 days. We take note ITA No.5272/Del/2024 Ashish Bansal 3 of the fact that the Ld. CIT(A) has dismissed the appeal ex parte due to non- prosecution and has not adjudicated the case on merits. 6. The condonation of delay in filing this appeal is on the record. It had been stated that the assessee’s counsel was preoccupied and took longer time to file this appeal as there was no professional assistance to look after the filing of the appeal in the income tax matter. The delay was not an extra ordinary delay as it was less than 08 days. Per contra, the Ld. CIT-DR submitted that the condonation application in filing this appeal did not reflect any reasonable cause on the part of the appellant assessee. He accordingly opposed condoning the delay in filing this appeal. 7. There is no dispute and is an admitted fact that there has been a delay of 08 days in filing this appeal. There is also no dispute that under section 254 of the Act, the Tribunal may pass such orders as it thinks fit. We are of the considered view that there was no malafide or deliberate delay in filing this appeal. In the interest of substantial justice, the delay in filing this appeal deserves condonation so that this appeal is decided on merit. We do not see any prejudice which will be caused to the Revenue in deciding this appeal on merit. In case of HL Malhotra & Company Pvt. Ltd. Vs DCIT, Circle12, New Delhi (ITA No. 211/2020 & CM Appeals 32045-32047/2020 dated 22nd December, 2020), the Hon’ble Delhi High Court has held that in absence of anything male fide or deliberate delay as a dilatory tactic, the Court should normally condone the delay as the intent is always to promote substantial ITA No.5272/Del/2024 Ashish Bansal 4 justice following the Hon’ble Supreme Court decisions in the case of Collector, Land Acquisition, Anantnag & Anr. Vs Mst. Katiji and others (1987) 2 SCC 107 and N. Balakrishnan Vs M. Krishnamurthy 1998 (7) SCC 123. 8. The explanation of the appellant assessee therefore, becomes relevant to determine whether the same reflects sufficient and reasonable cause on his part in not presenting this appeal within the prescribed time. In case of Collector, Land Acquisition vs MST Katiji (Supra), the Hon'ble Supreme Court has held that the expression ‘Sufficient Cause’ employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner to sub-serves the ends of justice that being the life-purpose of the existence of the institution of Courts. It was further held by the Hon’ble Supreme Court that such liberal approach is adopted on one of the principles that refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. Another principle laid down by the Hon’ble Supreme Court is that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. It was also held by the Hon’ble Supreme Court that there is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of male fides. ITA No.5272/Del/2024 Ashish Bansal 5 A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. In the instant case, applying the same principles, we find that there is no culpable negligence or malafide on the part of the assessee in delayed filing of appeal and it does not stand to benefit by resorting to such delay. Therefore, in the factual matrix of the present case, we find that there exists sufficient and reasonable cause for condoning the delay in filing this appeal as held by the Hon’ble Supreme Court, where substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserved to be preferred. 9. In light of aforesaid discussions, in exercise of powers under section 254 of the Act, we hereby condone the delay in filing this appeal as we are satisfied that there was sufficient cause for not presenting this appeal within the prescribed time. 10. We take note of the fact that the Ld. CIT(A) has dismissed the appeal ex parte due to non-prosecution and has not adjudicated the case on merits. Moreover, the Ld. CIT(A) has not decided each ground of appeal after discussing the issues in detail and his reasons for agreeing with the assessment order though he, as per provisions of section 250(6) of the Act, is obliged to dispose of the appeal in writing with well-reasoned order on each point of determination arisen for his consideration. It is evident from the perusal of section 251(1)(a), 251(1)(b) and Explanation of section 251(2) of the Act that the CIT(A) is required to apply his/her mind to all the issues which ITA No.5272/Del/2024 Ashish Bansal 6 arise from the impugned order before him/her, whether or not these issues have been raised by the assessee before him/her. 11. Section 251(1)(a) of the Act provides that while disposing of an appeal against assessment order, the CIT(A) shall have the power to confirm, reduce, enhance or annul the assessment. Similarly, the section 251(1) (b) of the Act provides that in disposing of an appeal against an order imposing a penalty, the CIT(A) may confirm or cancel such orders or vary it so as to either to enhance or to reduce the penalty. On cumulative consideration of the provisions of section 250(6) of the Act read with sections 250(4), 250(5), 251(1)(a), 251(1)(b) of the Act and Explanation of section 251(2) of the Act, it is concluded that the CIT is not empowered to dismiss the appeal for non- prosecution of appeal and is obliged to dispose of the appeal on merits. In this regard, the finding of the Delhi Bench in the case of MARC Laboratories Ltd. in ITA No.2731, 2732, 2733, 2730, 2734 & 2735/DEL/ 2022 is worth extracting as under: “5. We straightway refer to Section 250(6) of the Act which enjoins that the CIT(A) shall state the points for determination before it and the decision shall be rendered on such points along with reasons for the decision. Thus, it is incumbent upon the CIT(A) to deal with the grounds on merits even in ex parte order. In view of Section 250(6) of the Act, the CIT(A) has no power to dismiss an appeal on account of non-prosecution. This view is also taken by the Hon'ble Bombay High Court in case of CIT vs. Premkumar Arjundas Luthra HUF, (2017) 291 CTR 614 (Bom.). A bare glance of the order of the CIT(A) shows that CIT(A) has not addressed itself on various points placed for its determination at all and dismissed the appeal of assessee for default in non-appearance. Needless to say, the CIT(A) plays role of both ITA No.5272/Del/2024 Ashish Bansal 7 adjudicating authority as well as appellate authority. Thus, the CIT(A) could not have shunned the appeal for non- compliance without addressing the issue on merits. 6. In the totality of the circumstances, we consider it just and expedient to restore the matter back to the CIT(A) in the larger interest of justice with a view to enable the assessee to avail proper opportunity for disposal of appeal by the CIT(A) on various points. The assessee is cautioned to extend full co-operation to the CIT(A) without any demur, failing which, the CIT(A) shall be at liberty to conclude the appellate proceedings in accordance with law. Hence, the order of the CIT(A) appealed against, is set aside and all the issues raised in the impugned appeal are restored back to the file of the CIT(A) for fresh adjudication in accordance with law after giving reasonable opportunity of hearing to the assessee.” 12. In view thereof, without offering any comment on merit of the case, we deem it fit to set aside the impugned order and remit the matter back to the file of the CIT(A) for deciding the case afresh, in accordance with law, after providing adequate opportunity of being heard to the appellant assessee. Ordered accordingly. The appellant assessee, no doubt, shall cooperate in remitted appellate proceedings. 13. In the result, the assessee’s appeal is allowed for statistical purposes. Order pronounced in open Court on 12th March, 2025 Sd/- Sd/- (VIKAS AWASTHY) (AVDHESH KUMAR MISHRA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated:12/03/2025 Binita, Sr. PS Copy forwarded to: 1. Appellant ITA No.5272/Del/2024 Ashish Bansal 8 2. Respondent 3. PCIT 4. CIT(Appeals) 5. CIT-DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI "