Mohammed Hassan, Hyderabad V. Income Tax Officer, Ward-9(2), Hyderabad

ITA 1571/Hyd/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 8498 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Assessment Year: 2009-2010
• Appeal Filed On: 23-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘ B ‘ Bench, Hyderabad (Through Video Conferencing) Before Shri S.S. Godara, Judicial Member AND Shri Laxmi Prasad Sahu, Accountant Member O R D E R Per S. S. Godara, J.M. This assessee’s appeal for A.Y. 2009-10 arises from the Commissioner of Income Tax (Appeals) – 7, Hyderabad’s order dated 18.09.2019 in case No.0112/CIT(A)-7/2018-19 involving proceedings u/s 144 of the Income Tax Act, 1961 [in short, ‘the Act’]. Case called twice. None appears at assessee’s behest. He is accordingly proceeded ex-parte. 2. The assessment order was passed ex-parte u/s 144 of the I.T. Act on 30.12.2011 making addition of Rs.70,38,500/- as unexplained cash credits, thus, assessing the total income at Rs.72,51,860/-. It is claimed in the assessment order that though notices were served on the appellant, he had failed to reply. ITA No.1571/Hyd/2019 Assessment Year: 2009-10 Mohammed Hassan, Hyderabad. PAN : ABOPH4776R. Vs. The Income Tax Officer, Ward 9(2), Hyderabad. (Appellant) (Respondent) Assessee by: None Revenue by : Rohit Mujumdar Date of hearing: 12.01.2022 Date of pronouncement: 21.02.2022 ITA No.1571/Hyd/2019 2 3. Against the said assessment order, the appellant filed appeal before the CIT(A)-7, Hyderabad on 27.12.2018 with a delay of 5 years and 10 months. Before the CIT(A), he filed a condonation petition that the appellant in condonation petition claimed that the order u/s 144 of the Act was never served on the appellant. And that got to know about the exparte assessment order only when his bank accounts were attached by the Income Tax Department. After that, the appellant obtained copy of the assessment order on 30.11.2018. Therefore, in the condonation petition, the appellant prayed for condonation. 4. The CIT(A) called for a remand report. In the remand report, the Assessing Officer claimed that the assessment order was served on the appellant by speed post and submitted copy of the acknowledgment of the speed post containing some recipient signature. 5. Based on the remand report, the CIT(A) has dismissed assessee’s condonation petition on the ground that the assessment order had been duly served on the appellant as per the postal acknowledgment. 6. We note in this backdrop that the CIT(A) has heavily relied on the remand report and postal acknowledgment only. However, he has failed to rebut the submissions of the appellant made during lower appeal proceedings that he had shifted from the address which was mentioned in the assessment order on the postal acknowledgment. The appellant claims that the signature on the acknowledgment is neither of himself nor of any of his family members. This is a vital fact that CIT(A) has not ITA No.1571/Hyd/2019 3 commented anything on this issue whether the signature on the acknowledgment is of the appellant or any of his family members. 7. Heard both sides and perused the material available on record. We find that the foregoing delay is because of the appellant had not received the assessment order. There is no contrary evidence in the appeal to prove that the signature on the assessment order is either of the appellant or his family members. Therefore, in the absence of any contradictory evidence, one needs to accept the appellant’s notarized claim that signature on the postal acknowledgment does not pertain either to him or to his family members. In this scenario, there was valid and reasonable cause for delay in filing the appeal. In the case of Collector, Land Acquisition Vs. Mst. KATJI and others (167 ITR 471) the hon’ble Supreme Court held that substantial justice shall prevail or not technical consideration for the cause of condonation of delay in filing of appeal. In the case of Improvement Trust, Ludhiana Vs. Ujagar Singh (SC) in Civil Appeal No.2395 of 2018 dt.26.06.2010, it was held that “unless malafides are writ large, delay should be condoned and the matters should be disposed on merits and not technicalities. In the case of B. Madhuri Goud Vs. B. Damodar Reddy reported in (2012) SCC 693, hon’ble Supreme Court held as under : • There should be a liberal, pragmatic, justice oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalize the injustice but are obliged to remove injustice. • The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. • Substantial justice being paramount and pivotal, the technical considerations should not be given undue and uncalled for emphasis. ITA No.1571/Hyd/2019 4 • No presumption can be attached to deliberate cause of delay but, gross negligence on the part of the counsel or litigant is to be taken noteof. • The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. • The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is found on objective reasoning and not on individual perception. Following the decisions of hon’ble Apex Court, in order to do substantial justice, we therefore set aside the assessee’s grievances herein for the appropriate adjudication u/s 250(6) of the Act after affording three effective opportunities of hearing. Ordered accordingly. 8. This assessee’s appeal is allowed for statistical purposes in above terms. Order pronounced in the Open Court on 21 st February, 2022. Sd/- Sd/- (LAXMI PRASAD SAHU) ACCOUNTANT MEMBER (S.S. GODARA) JUDICIAL MEMBER Hyderabad, dated 21 st February, 2022. TYNM/sps Copy to: S.No Addresses 1 Mohammed Hassan, C/o. Mohd Afzal, Advocate, #402, Sherson’s Residency, 11-5-465, Criminal Court Road, Red Hills, Hyderabad – 04. 2 The Income Tax Officer, Ward 9(2), Hyderabad. 3 CIT (A) – 7, Hyderabad. 4 Pr.CIT – 7, Hyderabad. 5 DR, ITAT Hyderabad Benches 6 Guard File By Order