BHAVESH RAMJEEBHAI MAKVANA,RAJKOT V. THE INCOME TAX OFFICER- WARD 1(2)(1), VADODARA

ITA 2034/AHD/2024

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The case involves Bhavesh Ramjeebhai Makvana, the assessee, who appealed against the order passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi. The appeal was initially flagged as barred by limitation due to a 32-day delay in filing. The assessee, being illiterate/semi-literate and residing in a remote village, faced genuine hardships in accessing the necessary notices and proceedings through the Income Tax Portal. The Tribunal found the delay reasonable and admitted the appeal for adjudication on merits. The primary contention was the ex-parte nature of the appellate order and the assessment order, both of which were passed without the effective participation of the assessee due to his inability to access the online proceedings.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 314237 (ITAT-AHMEDABAD)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J.L. BHATIA
• Assessee Lawyers: SAMIR BHUPTANI
• Keywords: Set aside; Opportunity of being heard; Reassessment proceedings; Principle of natural justice
• Section: 147; 144; 143(3); 271(1)(c); 234B

Judgement Text

"आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण,अहमदाबाद \bयायपीठ अहमदाबाद \bयायपीठ अहमदाबाद \bयायपीठ अहमदाबाद \bयायपीठ ‘SMC’ अहमदाबाद। अहमदाबाद। अहमदाबाद। अहमदाबाद। IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, AHMEDABAD ] ] BEFORE SMT.ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA No.2034/Ahd/2024 Asstt.Year :2012-13 Bhavesh Ramjeebhai Makvana At Pal, Tal-Lodhika Dist. Rajkot. PAN : BPHPM 2808 B Vs The ITO, Ward-1(2)(1) Vadodara. (Applicant) (Responent) Assessee by : Shri Samir Bhuptani, AR Revenue by : Shri J.L. Bhatia, Sr.DR सुनवाई क तारीख/Date of Hearing : 13/02/2045 घोषणा क तारीख /Date of Pronouncement: 06/05/2025 आदेश आदेश आदेश आदेश/O R D E R The present appeal has been filed by the assessee against order passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi under section 250 of the Income Tax Act, 1961 dated 29.8.2024 pertaining to Asst.Year 2012-13. 2. At the outset, it is noticed that the Registry has flagged the appeal as barred by limitation by 32 days in filing before the Tribunal. In this regard, the assessee has submitted that he is illiterate/semi-literate, residing in a small village (Pal), and is not conversant with the Income Tax Portal proceedings. Due to these limitations, the assessee could not access the various notices issued by the Department during the assessment proceedings. It ITA No.2034/Ahd/2024 2 was only when the assessee approached his counsel to ascertain the status of the assessment that he became aware of the passing of the impugned order. This led to a delay of 32 days in filing the present appeal. 3. After considering the submissions of both sides, and in light of the assessee’s background and limited access to technological resources, I am of the view that the delay of 32 days is neither deliberate nor contumacious. It is a reasonable delay arising out of genuine hardship. Accordingly, in the interest of substantial justice, the delay of 32 days in filing the appeal is condoned, and the appeal is admitted for adjudication on merits. 4. The grounds raised by assessee are as under: 1.1 Ld. CIT(A) erred in law as well as on facts in passing the ex- parte appellate order u/s. 250 of the Income Tax Act, 1961 which is bad in law and without appropriate jurisdiction and liable to be set- aside. 1.2 Ld. CIT(A) erred in law as well as on facts in not setting aside the matter to the file of Id. AO in view of the provision of section 251 of the act. 1.3 Ld. CIT(A) erred in law as well as on facts in presuming that the appellant is not interested in prosecuting the appeal. 1.4 Ld. CIT(A) erred in law as well as on facts in not adjudicating the grounds of appeal raised by the appellant in his appeal memo and thereby dismissing the appeal for want of prosecution and without passing any comment on merit. 1.5 Ld. AO erred in law as well as on facts in re-opening assessment u/s. 147 of the Income-tax Act, 1961, which is bad in law and without appropriate jurisdiction. Ld. CIT(A) erred in law as well as on facts in not adjudicating the same. 1.6 Ld. AO erred in law as well as on facts in passing assessment order u/s. 144 r. w. s. 143(3) of the act, which is invalid as void-ab- ITA No.2034/Ahd/2024 3 initio. Ld. CIT(A) erred in law as well as on facts in not adjudicating the same. 1.7 Ld. AO erred in law as well as on facts in making addition of Rs.13,09,912/- u/s. 69A of the act. Ld. CIT(A) erred in law as well as on facts in not adjudicating the same. 1.8 Ld. AO erred in law as well as on facts in charging interest u/s. 234A, 234B and 234C of the act. Ld. CIT(A) erred in law as well as on facts in not adjudicating the same. 1.9 Ld. AO erred in law as well as on facts in initiating penalty u/s. 271(1)(c) of the act. Ld. CIT(A) erred in law as well as on facts in not adjudicating the same.” 5. I have considered submissions of both the parties, perused the impugned orders. The assessee has raised multiple grounds of appeal, primarily challenging the action of the Ld. CIT(A) in passing an ex-parte order without adjudicating the issues raised on merits. It is also contended that both the assessment order passed by the AO and the appellate order of the Ld. CIT(A) are bad in law, void ab initio, and passed without affording due and effective opportunity of hearing. 7. A perusal of the record shows that the assessment proceedings were concluded u/s.144 r.w.s. 143(3) and appeal proceedings were also concluded ex-parte u/s. 250, without the appearance of the assessee. The explanation offered by the assessee is that he is illiterate/semi-literate, resides in a remote village (Pal), and was not conversant with the online portal-based proceedings of the Income Tax Department. The assessee was, therefore, unable to access notices and communications issued by the Department during the assessment and appellate proceedings. ITA No.2034/Ahd/2024 4 8. The Ld. Counsel for the assessee submitted that the non- appearance was neither deliberate nor wilful but due to genuine constraints. It is submitted that the assessee was unaware of the assessment developments and came to know of the order only when he consulted his tax representative. It was further submitted that the assessee has a strong case on merits and should be provided a fair opportunity of being heard. 9. On the other hand, the Ld. Departmental Representative (DR) relied on the orders of the lower authorities. 10. After hearing both sides and considering the material available on record, I find merit in the submissions of the assessee. It is evident that both the assessment and first appellate proceedings were concluded without effective participation of the assessee, owing to his genuine limitations in accessing the e-portal system. In such a situation, it cannot be said that the assessee willfully avoided compliance. The principles of natural justice demand that a party should not be condemned unheard. 11. In view of the above facts and in the interest of substantial justice, I am of the considered opinion that the matter should be restored to the file of the Assessing Officer. Accordingly, the impugned orders are set aside, and the matter is restored to the file of the AO with a direction to frame a de novo assessment after providing due and reasonable opportunity of hearing to the assessee. ITA No.2034/Ahd/2024 5 The assessee is also directed to extend full cooperation before the AO and ensure timely compliance with the notices issued during the reassessment proceedings. 13. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the Court on 6th May, 2025 at Ahmedabad. Sd/- (ANNAPURNA GUPTA) ACCOUNTANT MEMBER Ahmedabad, dated 06/05/2025 vk* "