DIVYESH DEVABHAI PAMPANIA,JUNAGADH V. NFAC, DELHI, DELHI

ITA 410/RJT/2024

AI Insights

The case involves three appeals filed by the assessee, Divyesh Devabhai Pampania, against the orders of the Learned Commissioner of Income Tax (Appeals) for the Assessment Years 2016-17 and 2017-18. The appeals were related to the assessment orders passed under sections 147 and 144, and the penalty order under section 271(1)(c) of the Income Tax Act, 1961. The primary contention was the dismissal of the appeals by the CIT(A) due to delay, which the assessee argued was caused by the COVID-19 pandemic. The Tribunal found that the CIT(A) had not adequately considered the impact of the pandemic on the filing delays and the principles of natural justice were not followed as the assessee was not given a fair opportunity to present additional evidence.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 40433 (ITAT-RAJKOT)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2017-2018
• Other Referred Cases: M.S.Gill vs The Chief Election Commission, A.K. Kraipak vs UOI
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DA RSI SUMAN RATNAM; LD
• Assessee Lawyers: KALPESH DOSHI; LD
• Keywords: Condonation of delay; Set aside; Opportunity of being heard; Corroborative evidences; Principle of natural justice
• Section: 147; 271(1)(c); 12A

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT BEFORE DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER AND SHRI DINESH MOHAN SINHA, JUDICIAL MEMBER आयकरअपीलसं./ITA Nos.409 & 410 & 412/RJT/2024 (िनधाªरणवषª / Assessment Year: (2016-17 & 2017-18) (Physical Hearing) DIVYESH DEVABHAI PAMPANIA C/O DEVABHAI AMRABHAI PAM NEW PLOT AREA, TALUKA- TALALA MU GUNDARAN, DIST – JUNAGADH -362150 Vs. ITO, WARD NO: 4, VERAVAL Öथायीलेखासं./जीआइआरसं./PAN/GIR No.: BOAPP5769J (Appellant) (Respondent) Appellant by :Shri Kalpesh Doshi, Ld. AR Respondent by :Shri Darsi Suman Ratnam, Ld. CIT (DR) Date of Hearing : 29/10/2024 Date of Pronouncement : 31/12 /2024 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned three appeals filed by the assessee, pertaining to Assessment Year (AY) 2016-17 and 2017-18, are directed against the separate orders passed by the Learned Commissioner of Income Tax(Appeals), which in turn arise out of separate assessment orders passed by Assessing Officer, under section 147 r.w.s 144 of the Act, and penalty order passed under section 271(1)(c) of the Income Tax Act, 1961. 2. Since, the issues involved in all the appeals are common and identical; and all these appeals pertain to same assessee, therefore, these appeals have been heard together and are being disposed of by this consolidated order. 3. At the outset, ld Counsel for the assessee, begins by pointing out that there was a delay in filing the appeal before the ld. CIT(A). The assessee had explained the reasons for delay, along with supporting evidences, however, in spite of this, the ld. CIT(A) did not condone the delay and dismiss the appeal of the assessee. In ITA No.409/Rjt/2024 for assessment year 2016–17, the ld. CIT(A) noticed that there was a delay of 214 days in filing the appeal, however, after excluding COVID-19 period, only a minor delay remains, for which also the assessee has submitted sufficient cause and explained the delay. In ITA No.410/Rjt/2024 for assessment year 2017–18, the ld. CIT(A) noticed that there was a delay of 220 days in filing the appeal, however, after excluding COVID-19 period, only a minor delay remains, for which also the assessee has submitted sufficient cause and explained the delay. The Learned Counsel also submitted that ld CIT( A) also dismissed both appeals on merit, which is not acceptable, that is, on one hand, the ld CIT(A) dismissed the appeal of the assessee, on account of condonation of delay and on the other hand, the ld CIT(A) also adjudicated the issue on merit, which is not acceptable, as it is not permitted under the law to do both the things. Besides, on merit, the assessee wanted to submit some more documents and evidences, which were not considered by the ld CIT(A), while adjudicating the issue on merit, therefore it is against the principle of natural justice. 4. The ld Counsel also submitted that this Bench may condone the delay in filing the appeals, in both the cases, and since the assessee wants to submit some more documents and evidences to justify its claim. Therefore, matter may be remitted back to the file of the assessing officer for fresh adjudication. 5. On the other hand, ld DR for the Revenue, submitted that after excluding the COVID-19 pandemic- period, there is some delay in both the appeals, which the assessee has failed to explain. No doubt, in COVID-19 pandemic, Peoples were working with safety and precaution. Therefore, delay is likely to happen. However, the assessee needs to explain the delay with documentary evidences. The ld DR does not have any objection, if these three appeals are restored back to the file of the assessing officer for fresh adjudication. 6. We have heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld CIT(A) and other materials brought on record. We find that most of the delay in filing these two appeals, were attributable to COVID-19 pandemic, disease, which was explained to the ld. CIT(A), however, despite of this, the ld. CIT(A) did not condone the delay and dismiss both the appeals of the assessee. The ld CIT( A) also dismissed these appeals on merit. We find that there was a minor delay, after excluding the period attributable to COVID-19 pandemic, and for that also, the assessee has explained the sufficient cause for the delay, however, the ld. CIT (A) did not condone the delay. Therefore, ld. Counsel prays the Bench that delay in filing the appeals before ld. CIT(A) may be condoned, and appeals may be restored back to the file of the assessing officer, as the assessee wants to submit some more evidences and documents before the assessing officer, to justify its claim. 7. We note that in both the appeals, the assessees have explained the sufficient cause to condone the delay stating that delay is attributable due to Covid-19- Pendimic- disease and stated that delay has been condoned by the Hon`ble Supreme Court in Suo-moto writ petition,Vide Miscellaneous Application No. 21 of 2022 dated January 10, 2022 , wherein the Hon`ble Supreme Court clarified that, the period from March 15, 2020 till February 28, 2022 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.From the above, it is clear that the said period starting from 15.03.2020 to 28.02.2022 has to be excluded in calculating the time limit.Therefore, having regard to the reasons given in the petition filed by the assessee before ld. CIT(A), we condone the delay in both appeals. 8. On merit of the case, the ld. Counsel for the assessee, assailed the impugned order by contending that the assessee could not represent his case before Ld. CIT(A) and the order being an ex-parte order, stood vitiated on account of violation of principle of natural justice. The assessee wants to submit some more documents and evidences before the assessing officer, therefore, the ld. Counsel for the assessee contended that in the interest of justice, another opportunity to contest the appeal before the assessing officer may be granted to the assessee. 9. The ld. DR for the Revenue debarred from objecting the stand of the ld. Counsel. 10. On merit, we have heard both the parties and observed that assessee, wants to file more documents and evidences, to prove its claim before the assessing officer, therefore, instead of restoring the matter back, to the file of the ld. CIT(A), it would be better to restore the matter back to the file of the assessing officer to save time and duplication of the work, to call remand report etc. We note that in the assessee’s case under consideration, the assessment was carried out u/s 144/147 of the Act and the impugned order passed by the ld. CIT(A), is an ex parte order and non-speaking order, therefore, we do not wish to make any comments on the merits of the grounds raised by the assessee. 11 We note that the Hon’ble Supreme Court in M.S.Gill vs The Chief Election Commission 1978 AIR SC 851 held “The dichotomy between administrative and quasi-judicial function vis-à-vis the doctrine of natural justice is presumably obsolescent after Kraipak (A.K. Kraipak vs UOI AIR 1970 SC 150) which makes the water-shed in the application of natural justice to administrative proceedings. The rules of natural justice are rooted in all legal systems and are not any new theology. They are manifested in the twin principles of nemo judex in parte sua (no person shall be a judge in his own case) and audi alterem partem (the right to be heard). It has been pointed out that the aim of natural justice is to secure justice. 12. Considering the above facts, we note that assessee has not given sufficient opportunity of being heard and could not plead his case successfully before the ld. CIT(A). Besides, the assessee wants to submit more evidences before the assessing officer. We note that the ld. CIT(A) did not discuss the assessee’s case on merits based on the material available before him hence it is a violation of principle of natural justice. We note that it is settled law that principles of natural justice and fair play require that the affected party is granted sufficient opportunity of being heard to contest his case. Therefore, without delving much deeper into the merits of the case, in the interest of justice, we restore the matter back to the file of assessing officer, for de novo adjudication and pass a speaking order after affording sufficient opportunity of being heard to the assessee, who in turn, is also directed to contest his stand forthwith. Therefore, we deem it fit and proper to set aside the order of the ld. CIT(A) and remit the matter back to the file of the assessing officer to adjudicate the issue afresh on merits. For statistical purposes, the appeals of the assessee are treated as allowed. 13. Since, we have remitted back the quantum appeal of the assessee, in ITA No. 409/Rjt/2024, for assessment year 2016–17, to the file of the assessing officer, therefore, penalty appeal under section 271(1)(c) of the Act, for assessment year 2016–17, is also being restored back to the file of the assessing officer for fresh adjudication, as per the outcome of the quantum proceedings. 14. In the result, these three appeals of the assessee are allowed for statistical purposes. Order is pronounced on 31 /12/2024 in the open court. Sd/- Sd/- (DINESH MOHAN SINHA) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER Rajkot िदनांक/ Date: 31 /12/2024 Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. Pr. CIT 5. DR/AR, ITAT, Rajkot 6. Guard File By Order Assistant Registrar/Sr. PS/PS ITAT, Rajkot "