Nutan Sarvoday Co-Op. Housing Society, Rajkot V. The ACIT Cir-2(1), Rajkot

ITA 108/RJT/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 0941 (ITAT-RAJKOT)
• Duration Of Justice: 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2016-2017
• Appeal Filed On: 22-02-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHISH KUMAR PANDEY
• Keywords: Principle of natural justice; Set aside
• Section: 143(3); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT (SMC) BENCH BEFORE DR. A. L.SAINI, ACCOUNTANT MEMBER आयकर अपील सं./ITA No.108/RJT/2024 Assessment Year: (2016-17) (Physical Hea ring) Nutan Sarvoday Co-op Housing Society, Kalawad Road, Rajkot - 360001 Vs. The ACIT, Circle -2(1), Rajkot थायीलेखासं./जीआइआरसं./PAN/GIR No.: AAAAN0418Q (Appellant) (Respondent) Appellant by Shri Mehul Ranpura, AR Respondent by Shri Ashish Kumar Pandey, Sr. DR Date of Hearing 15/07/2024 Date of Pronouncement 15/07/2024 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeal filed by the assessee, pertaining to Assessment Year (AY) 2016-17, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals), [in short “the ld. CIT(A)”], National Faceless Appeal Centre (in short ‘the NFAC’), dated 11.10.2023,which in turn arises out of an assessment order passed by Assessing Officer u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), dated 18.12.2018. 2. The appeal filed by the assessee for assessment year (AY) 2016-17, is barred by limitation by 75 days. The assessee moved a petition for condonation delay, requesting the Bench to condone the delay. The Learned Counsel for the assessee, argued that the assessment in the case of society was finalized by assessing officer, vide order u/s. 143(3) of the Act, dated 18.12.2018, assessing total Page | 2 ITA.108/Rjt/2024/AY.2016-17 Nutan Sarvoday Co-op Housing Society income at Rs.42,99,638/-, after making disallowance of Rs.26,60,838/- to the returned income of Rs.16,38,800/-. On appeal, the Hon'ble Commissioner of Income-tax(Appeals), National Faceless Appeal Centre, Delhi, has vide order dated 11.10.2023, in appeal no. CIT(A), Rajkot-2/10596/2018-19, dismissed the appeal ex-parte. The above stated order of Ld. CIT(A), was served on e-mail address of assessee’s accountant i.e. [e-mail]. However, accountant was not regularly accessing said email id and using only another e-mail id, as "[e-mail]” for his personal use. Therefore, through oversight all the notices issued u/s 250 of the Act, remained unattended and appellate proceeding finalized ex-parte. Because of the circumstances, as stated above, the delayhas occurred, in filing appeal, before the Hon'ble Income-tax Appellate Tribunal. The delay in filing the appeals is not intentional but because of the inadvertent circumstances as stated above; hence Learned Counsel contended that delay may be condoned. 3. Thus, Learned Counsel for the assessee, again reiterated that during the appellate proceedings, the notices issued by the Ld. CIT(A) were served on the e-mail id i.e., [e-mail], however the assessee’s accountant was using the other e-mail id i.e., [e-mail], therefore assessee’s accountant could not get the notices of hearing and was not aware about the passing of ex parte order by the Ld. CIT(A),therefore, the delay of 75 days in filing the appeal has occurred, which may kindly be condoned in the interest of justice. 4. On the other hand, Learned Senior Departmental Representative (Ld. Sr. DR) for the Revenue opposed the prayer for condonation of Page | 3 ITA.108/Rjt/2024/AY.2016-17 Nutan Sarvoday Co-op Housing Society delay of the assessee and stated that assessee failed to explain sufficient cause, hence the delay should not be condoned. 5. I have heard both the parties on this preliminary issue.I note that during the appellate proceedings, notices of hearing were served on the e-mail id which was being used by the assessee’s accountant. Apart from this, the accountant on which the notices were served, were using two e-mail id, hence was not aware about service of notices during the appellate proceedings, as the accountant did not access the relevant e-mail id, out of the two e-mail ids.However, notices of hearings were served on other e-mail id of the accountant, which was not used by the accountant, hence in this process, the delays in filing the appeal hasoccurred.I am of the view that provisions of law have to be adhered strictly and that one cannot be allowed to act in leisure and make a mockery of enacted law, because law and provisions are laid down to benefit both sides of litigation. Be that as it may, I have to do justice and the Hon’ble Supreme Court in the case of Collector, Land Acquisition vs. MstKatiji and others, reported in 167 ITR 471, (1988 SC 897) (7) has observed as follows: “4. When substantial justice and technical considerations are pitted against each other, 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.” 6. When I weigh this aspect then the side of justice becomes heavier and casts a duty on me to deliver justice. The reasons given in the affidavit for condonation of delay were convincing and these reasons would constitute reasonable and sufficient cause for the delay in filing this appeal. I, therefore, condone the delay and admit the appeal for hearing. Page | 4 ITA.108/Rjt/2024/AY.2016-17 Nutan Sarvoday Co-op Housing Society 7. On merit, Learned Counsel for the assessee, argued that there was a compliance before the Assessing Officer, as the Assessing Officer framed the assessment order u/s 143(3) of the Act, dated 18.12.2018, however, before Ld. CIT(A), the assessee could not file the details and documents, therefore Ld. CIT(A) has passed the ex parte order, hence Learned Counsel for the assessee contended that one more opportunity should be given to assessee to plead his case before the Ld. CIT(A) and therefore matter may be remitted back to the file of Ld. CIT(A) for fresh adjudication. 8. On the other hand, Ld. Sr. DR for the Revenue, submitted that despite of giving six opportunities of hearing by the Ld. CIT(A), the assessee could not appear during the appellate proceedings, therefore assessee’s appeal may be dismissed. 9. I have heard both the parties and perused the material available on record. It is seen that during the appellate proceedings, the assessee did not submit details and documents before the Ld. CIT(A), therefore, the Ld. CIT(A) passed an ex parte order. During the appellate proceedings, the notices of hearing could not be received by the assessee, therefore, the assessee did not appear before the ld CITA. I note that assessee could not plead his case successfully before the Ld. CIT(A), and Ld. CIT(A) has not passed the order, as per the mandate of provisions of section 250(6) of the Act. That is, Ld. CIT(A) did not pass order on merit based onthe entire material available on record.Hence, I am of the view that one more opportunity should be given to the assessee to plead his case before the Ld. CIT(A).I 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 Page | 5 ITA.108/Rjt/2024/AY.2016-17 Nutan Sarvoday Co-op Housing Society delving much deeper into the merits of the case, in the interest of justice, I restore the matter back to the file of Ld. CIT(A) 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, I 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 Ld. CIT(A) to adjudicate the issue afresh on merits. For statistical purposes, the appeal of the assessee is treated as allowed. 10. In the result, appeal of the assessee is allowed for statistical purposes. Order is pronounced on 15/07/2024 in the open court. Sd/- (Dr. A.L. SAINI) ACCOUNTANT MEMBER Rajkot दनांक/ Date: 15/07/2024 Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Rajkot 6. Guard File // TRUE COPY // By Order Assistant Registrar/Sr. PS/PS ITAT, Rajkot