Sekh Alauddin, Gurgaon V. ITO, Ward 4(2), Gurgaon

ITA 104/DEL/2023

AI Insights

Sekh Alauddin, engaged in the business of polish and repair of old jewellery, appealed against the order of the CIT(A), National Faceless Appeal Centre, which was dated 02.08.2022 for the Assessment Year 2012-13. The appeal was initially delayed by 107 days due to the assessee's ignorance of the statutory timeline for filing appeals. The ITAT found the delay to be unintentional and condoned it, referencing the Supreme Court's decision in Concord India Insurance Co. Ltd Vs. Nirmala Devi. The ITAT also noted that the AO had passed an order under sections 144 and 147 of the Income Tax Act without proper representation of the assessee, and the CIT(A) had dismissed the appeal ex parte without adjudicating the grounds raised. Consequently, the ITAT restored the case to the AO for a new assessment.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 131268 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 05-04-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 15-01-2023
• Other Referred Cases: Concord India Insurance Co. Ltd Vs. Nirmala Devi reported in 118 ITR 507 (SC)
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 147; 144

Judgement Text

Page | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “SMC”: NEW DELHI BEFORE Shri C.M. Garg, Judicial Member ITA No. 104/Del/2023 (Assessment Year: 2012-13) Sekh Alauddin, 222/5, Jacobpura, Gurgaon, Haryana Vs. ITO, Ward-4(2), Gurgaon (Appellant) (Respondent) PAN: APWPA1035L Assessee by : Sh. Mukul Gupta, CA Revenue by: Sh. Om Parkash, Sr. DR Date of Hearing 06/04/2023 Date of pronouncement 09/05/2023 O R D E R PER C. M. GARG, J. M.: 1. This is an appeal filed by the assessee against the order of the ld CIT(A), National Faceless Appeal Centre (NFAC), Delhi dated 02.08.2022 for AY 2012-13. 2. The application of assessee seeking condonation of delay of 107 days. 3. The assessee’s representative (AR) submitted that the assessee is engaged in the business of polish and repair of old jewellery and allied products and was not aware of the consequences and time line for filing of appeal before the Tribunal. The ld AR submitted that the since the assessee was not aware of the time line for filing appeal before the Tribunal there was inadvertent delay of 107 days in filing the present appeal before the tribunal. Drawing our attention towards condonation petition the ld AR submitted that the assessee should not be punished for his ignorance about the time ITA No. 104/Del/2023 Sekh Alauddin Page | 2 line provide in statute for filing appeal before the Tribunal therefore, delay being bonfide may kindly be condone. 4. Replying to the above, the ld Sr. DR strongly opposed to the condonation of delay. 5. On careful consideration of the submission of the assessee I am of the view that the assessee is a small professional doing business of polish and repair of old jewellery and other allied products and for this purpose he moved from one locality to another locality and from one village to another village continuously. In such a situation the delay of 107 days in filing appeal before the tribunal cannot be taken as mala fide or not intentional on the part of the assessee, who is not getting anything from delay in filing appeal before the Tribunal. Therefore, I hold that the cause shown by the assessee in non filing appeal before the tribunal within specified time frame, is sufficient cause. Respectfully following the judgment of Hon'ble Supreme Court in the case of Concord India Insurance Co. Ltd Vs. Nirmala Devi reported in 118 ITR 507 (SC), the delay of 107 days in filing the appeal before the Tribunal is condone. 6. The ld Sr. DR, in all fairness agreed to the submission of the ld AR that the AO has passed order u/s 144 read with section 147 of the Act on 26.01.2019 and the case of the assessee was not represented properly before him. The ld Sr. DR also agreed to the second contention of the ld AR that the ld CIT(A) has also passed ex parte order without adjudicating the grounds of assessee raised in From 35 and decided the appeal against the assessee. 7. From careful reading of the first appellate order I find that the ld CIT(A) after reproducing the factual position of the case reiterated the findings of the AO and dismissed the appeal of the assessee without any adjudication of grounds of assessee as per from No. 35 of the first appellate appeal. In such a situation I find it just and proper to restore the matter to the file of the AO for a fresh de novo ITA No. 104/Del/2023 Sekh Alauddin Page | 3 framing of assessment after allowing due opportunity of hearing to the assessee without being influenced from earlier assessment order and first appellate order. 8. In the result, appeal of the assessee is allowed for statistical purposes. 9. Order pronounced in the open court on 09/05/2023. -Sd/- (C. M. GARG) JUDICIAL MEMBER Dated: 09/05/2023 A K Keot Copy forwarded to 1. Applicant 2. Respondent 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, New Delhi