Devender Kumar, Ghaziabad V. ITO WARD - 1(2), Ghaziabad

ITA 124/DEL/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0738 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 28-09-2022
• Assessment Year: 2009-2010
• Appeal Filed On: 18-02-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AKSHIT; GOEL
• Keywords: Opportunity of being heard; Reasonable cause; Condonation of delay; Set aside
• Section: 147; 148; 144; 142(1); 201; 251

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES “SMC” : DELHI BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER ITA.No.124/Del./2021 Assessment Year 2009-10 Shri Devender Kumar, H.No.198-A, New Defence Colony, Muradnagar, Ghaziabad – 201 001 U.P. PAN DQTPK8854G [vs. The Income Tax Officer, Ward-(2), Ghaziabad. (Appellant) (Respondent) For Assessee : Shri Akshit, Goel, C.A. For Revenue : Shri Anuj Garg, Sr. DR Date of Hearing : 29.09.2022 Date of Pronouncement : 14.10.2022 ORDER This appeal by assessee has been directed against the order of the Ld. CIT(A), Ghaziabad, dated 28.09.2018, for the A.Y. 2009-2010. 2. Briefly stated facts of the case are that the A.O. noted that there is a credit entry of Rs.39,16,127/- in the Bank A/c of the assessee maintained with Oriental Bank of Commerce, Morta, Ghaziabad. Based upon the AIR information, the case of the assessee was selected for 2 ITA.No.124/Del./2021 Shri Devender Kumar, Ghaziabad. scrutiny under section 148 of the I.T. Act, 1961 and statutory notices under section 148 and 142(1) dated 10.03.2016 and 17.05.2016 were issued and served upon the assessee through speed post. A final notice under section 144 of the I.T. Act, 1961 dated 10.06.2016 was also issued to the assessee. However, no compliance has been made by the assessee by filing requisite details before the A.O. Therefore, the A.O. passed ex-parte assessment order under section 144/147 of the I.T. Act, 1961 dated 14.10.2016 determining the total income of the assessee at Rs.21,49,720/- and initiated penalty proceedings separately. 2.1. Aggrieved by the ex-parte assessment order passed by the A.O. the assessee carried the matter in appeal before the Ld. CIT(A) contending, inter alia, that no statutory notices were received by the assessee and, therefore, he could not appear before the A.O. to put forth his grievance. The assessment order also not communicated to the assessee and it was only when the assessee approached his bank for some official work he came to know that the 3 ITA.No.124/Del./2021 Shri Devender Kumar, Ghaziabad. Income Tax Department had frozen his savings bank account. Thereafter, the assessee obtained certified copy of the order on 12.04.2017 and filed the appeal before the Ld. CIT(A) on 14.04.2017. The Ld. CIT(A) noted that the appeal filed before him is time barred by more than 4 months and, therefore, the Ld. CIT(A) passed ex-parte order by not condoning the delay and dismissed the appeal of assessee in limine. 3. Aggrieved by the order of the Ld. CIT(A), the assessee is in appeal before the Tribunal and has raised the following grounds : “1. On the facts and circumstances of the case the order passed under section 250(6) of the Act by Learned Commissioner of Income Tax (Appeal) is bad in law and deserved to be set aside. 2. That the learned Commissioner of Income Tax (Appeals) has erred both in law and on facts in disposing off the appeal Ex-Parte without granting any fair opportunity of being heard to the appellant. 4 ITA.No.124/Del./2021 Shri Devender Kumar, Ghaziabad. 3. That the learned Commissioner of Income Tax (Appeals) has failed to appreciate that there was reasonable cause for the appellant for not causing appearance on the dates fixed for hearing and as such disposal of the appeal without granting fair, meaningful and proper opportunity is untenable. 4. That even otherwise, an order passed in limini without effectively disposing of the grounds raised by the appellant is in infraction of section 250(6) of the Act and as such, order so made is otherwise too illegal, invalid and a vitiated order. 5. On the facts and circumstances of the case and in Law, the Learned Commissioner of Income Tax (Appeal) erred in confirming the order of the Id. AO considering all the credit entries in the bank account of the appellant as unexplained and adding an amount of Rs.21,49,717/- in the hands of the appellant.” 5 ITA.No.124/Del./2021 Shri Devender Kumar, Ghaziabad. 4. During the course of hearing, the Learned Counsel for the Assessee, at the very outset, submitted that the authorities below dismissed the appeal of assessee on the ground that the assessee did not appear or chose to file any documentary evidences, without considering the fact that proper statutory notices were not served upon the assessee. The Learned Counsel for the Assessee also relied upon various case laws which are placed on record at Pages 1 to 79 relating to quashing of assessment proceedings passed under section 147 in absence of non-service of jurisdictional notice under section 148 of the I.T. Act, 1961 and also relied on the decision of National Thermal Power Company Ltd., vs., CIT 229 ITR 383 (SC) and also decision of Hon’ble jurisdictional Delhi High Court in the case of CIT vs., Sardari Lal & Co. 251 ITR 864 (Del.-HC) to the effect that legal grounds can be raised at any time before the Appellate Authority. The Learned Counsel for the Assessee further drew the attention of Bench that on the wrong advice of a consultant, the assessee challenged the order of the First Appellate Authority before the Hon’ble Allahabad 6 ITA.No.124/Del./2021 Shri Devender Kumar, Ghaziabad. High Court and the Hon’ble Court vide order dated 28.08.2020 dismissed the appeal of assessee on the ground that an alternate remedy is available to the assessee to file an appeal before the ITAT. Accordingly, the assessee taking the support of a relaxation provided in the Taxation and Other Laws Amendment Act, 2020 filed the present appeal before the Tribunal and prayed that the ex-parte orders passed by the lower authorities be set aside. 5. The Ld. D.R. on the other hand relied on the orders of the authorities below. 6. I have heard the rival submissions of both the parties, perused the orders of the authorities below and the material available on record. I find that in the instant case the A.O. passed ex-parte assessment order and the Ld. CIT(A) also dismissed the appeal of assessee in limine observing that the appeal is time bared by more than 04 months, without deciding the appeal on merits. 6.1. In the instant case, I find the Ld. CIT(A) has passed the impugned order on two counts i.e., for not 7 ITA.No.124/Del./2021 Shri Devender Kumar, Ghaziabad. explaining the delay of more than 04 months and non- appearance of the assessee inspite of the notice issued to the assessee. In view of the above, without giving into the merits of the case with respect to quashing of assessment proceedings under section 147 of the I.T. Act, 1961, in absence of non-service of notice jurisdictional notice under section 148 of the I.T. Act, 1961, it is relevant to be noted herein that as per Section 250(6) of the I.T. Act, 1961, the Ld. CIT(A) is required to mention point for determination and reasons for decision in his appellate order. Even if the assessee did not appear before Ld. CIT(A), the Ld. CIT(A) should have to decide the appeal on merits giving reasons for decision in the appellate order. However, in the instant case, the Ld. CIT(A) simply dismissed the appeal of assessee in limine. Therefore, the order cannot be sustained in law. 6.2. With respect to non-condonation of delay by the Ld. CIT(A), it is a settled position of law as held by the Hon’ble Supreme Court in the case of Collector, Land Acquisition vs., MST. Katiji & Ors., reported in 167 ITR 471 (SC) that when substantial justice and technical 8 ITA.No.124/Del./2021 Shri Devender Kumar, Ghaziabad. 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. The Hon’ble Supreme Court while condoning the delay has laid down the following guidelines : 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. 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. 3. “Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 9 ITA.No.124/Del./2021 Shri Devender Kumar, Ghaziabad. 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 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 6.3. Since the Ld. CIT(A) in the instant case has dismissed the appeal of assessee on account of delay of more than 04 months, therefore, respectfully following the decision of Hon’ble Supreme Court in the case of Collector, Land Acquisition vs., MST. Katiji & Ors (supra), I direct the 10 ITA.No.124/Del./2021 Shri Devender Kumar, Ghaziabad. Ld. CIT(A) to condone the delay in filing of the appeal and decide the appeal of assessee on legal grounds as well as on merit as per fact and law, after giving due opportunity of being heard to the assessee. I hold and direct accordingly. Grounds raised by the assessee are allowed for statistical purposes. 7. In the result, appeal of assessee is allowed for statistical purposes. Order pronounced in the open Court on 14.10.2022. Sd/- [CHANDRA MOHAN GARG] JUDICIAL MEMBER Delhi, Dated 14 th October, 2022 VBP/- Copy to 1. The appellant 2. The respondent 3. Ld. CIT(A) concerned 4. CIT concerned 5. DR ITAT “SMC” Bench, Delhi 6. Guard File //By Order// Assistant Registrar, ITAT, Delhi Benches, Delhi.