Meenaben Sureshbhai Patel, Ahmedabad V. The ITO, Ward-2(2)(3), Ahmedabad

ITA 155/AHD/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7509 (ITAT-AHMEDABAD)
• Duration Of Justice: 11 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 05-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K GOYAL
• Keywords: Opportunity of being heard
• Section: 271(1)(c); 143(3); 73

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI AMARJIT SINGH , ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER I .T.A. NO. 1 5 5 /AHD/201 9 (ASSESSMENT YEAR : 2009 - 10 ) MEENABEN SURESHBHAI PATEL 19, JANTANAGAR, CHANDKHEDA, AHMEDABAD - 382424 VS. THE INCOME TAX OFFICER WARD - 2(2)(3), AHMEDABAD [ PAN NO. AOL PP5 815 K ] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI MEHUL TALERA , AR RESPONDENT BY : SHRI N.K. GOYAL , SR. D.R. DATE OF HEARING 21 . 01 .20 20 DATE OF PRONOUNCEMENT 30 . 0 1 . 20 20 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL AT THE INSTANCE OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 2 0 . 11 .201 8 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) 6 , AHMEDABAD ARISING OUT OF THE ORDER DATED 23.06.2017 PASSED BY THE ITO, WARD - 2(2)(3), AHMEDABAD UNDER SECTION 271(1)(C) OF THE INCOME TAX AC T, 1961 (HEREINAFTER REFERRED AS TO THE ACT ) FOR ASSESSMENT YEAR 200 9 - 1 0 . 2. INITIALLY AN ASSESSMENT ORDER UNDER SECTION 143(3) R.W.S. 147 OF THE ACT DATED 09.12.2016 WAS PASSED BY THE ITO W ARD - 2(2)(3), AHMEDABAD UPON MAKING ADDITION OF RS. 6, 24,500/ - IN THE HANDS OF THE ASSESSEE. PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT WAS ALSO INITIATED ITA NO. 1 5 5 /AHD/201 9 MEENABEN SURESHBHAI PATEL V S. I T O ASST.YEAR 20 09 - 10 - 2 - SEPARATELY FOR CONCEALMENT OF INCOME WHICH WAS FINALIZED BY THE SAID ITO ON 23.06.2017 UPON LEVYING PENALTY RS. 1,37,000/ - . BEING AGGRIEVED BY AND/OR DISSATISFIED WITH THE SAID ORDER OF P ENALTY DATED 23.06.2017 BY THE CONCERNED ITO AN APPEAL WAS PREFERRED BY THE LD. CIT(A) - 6 BEFORE THE APPELLANT. HOWEVER, THE SAID APPEAL WAS FOUND TO BE FILED AFTER EXPIRY OF 73 DAYS FROM THE STIPULATED TIME F OR FILING OF APPEALS. THE DELAY WAS SOUGHT TO BE JUSTIFIED BY THE ASSESSEE ON THE GROUND THAT THE ORDER UNDER SECTION 271(1)(C) DATED 23.06.2017 THOUGH RECEIVED BY THE ASSESSEE ON 10.07.2017 THE SAME WAS MISPLACED BY THE ASSESSEE AT HIS HOUSE AND, THEREFO RE, HE COULD NOT FILE THE APPEAL IN TIME. HOWEVER, SUCH PLEA OF THE ASSESSEE WAS NOT ACCEPTED BY THE LD. CIT(A) ON THE SPECIFIC GROUND THAT NO AFFIDAVIT EXPLAINING SUCH DELAY WAS FILED BEFORE HIM BY THE APPELLANT. HENCE, HE DISMISSED THE SAID APPEAL ON T HE GROUND OF DELAYED FILING BEYOND THE TIME LIMIT PRESCRIBED UNDER SECTION 2 49(2) OF THE ACT. HENCE, THE INSTANT APPEAL BEFORE US. HEARD THE PARTIES, PERUSED THE RECORDS. 3 . THE JUSTIFICATION FOR DELAY AS SOUGHT TO BE GIVEN BY THE APPELLANT AS DISCUSSE D ABOVE SEEMS TO BE GENUINE AND HENCE WE FIND NO REASON FOR THE LD. CIT(A) TO DISMISS THE APPEAL ON THE SAID GROUND OF THE DELAYED FILING. IN FACT THE LD. CIT(A) COULD HAVE GIVEN AN OPPORTUNITY TO THE ASSESSEE TO FILE AN AFFIDAVIT EXPLAINING SUCH DELAY IN THE ABSENCE OF WHICH WE FIND NO JUSTIFICATION IN DISMISSING THE SAID APPEAL PREFERRED BY THE APPELLANT. WE, THEREFORE, IN ORDER TO PREVENT THE MISCARRIAGE OF JUSTICE FIND IT FIT AND PROPER TO GIVE A FURTHER OPPORTUNITY OF BEING HEARD IN THE APPEAL BY THE LD. CIT(A) ITA NO. 1 5 5 /AHD/201 9 MEENABEN SURESHBHAI PATEL V S. I T O ASST.YEAR 20 09 - 10 - 3 - AND HENCE, WE SET - ASIDE THE ISSUE TO THE FILE OF THE LD. CIT(A) WITH A SPECIFIC DIRECTION UPON HIM TO CONDONE THE DELAY AND TO PROCEED WITH THE SAME IN ACCORDANCE WITH LAW UPON AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND UPON CONSIDERING THE EVIDENCE ON RECORD OR ANY OTHER EVIDENCE WHICH THE ASSESSEE MAY CHOOSE TO FILE AT THE TIME OF HEARING OF THE APPEAL. THE ASSESEE S APPEAL IS, THEREFORE, ALLOWED FOR STATISTICAL PURPOSE. 4 . IN THE RESULT, ASSESSEE S APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. THIS ORDER PRONOUNCED IN OPEN COURT ON 30 / 0 1 /20 20 SD/ - SD/ - ( AM A RJIT SINGH ) (MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER (TRUE COPY) AHMEDABAD; DATED 30 / 0 1 /20 20 MANISH, PS TRUE COPY