Pravinbhai Kanubhai Desai, Ahmedabad V. ITO, Ward-6(1)(3), Ahmedabad

ITA 1579/AHD/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6749 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 25-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B.P SRIVASTAVA
• Keywords: Principle of natural justice
• Section: 201; 22

Judgement Text

PAGE 1 OF 3 , IN THE INCOME TAX APPELLATE TRIBUNAL , A BENCH, AHMEDABAD BEFORE , SHR I RAJPAL YADAV , JUDICIAL MEMBER AND SHRI WASEEM AHMED , ACCOUNTANT MEMBER ./ ITA NO.1579/AHD/2018 / ASSTT. YEAR : 2015 - 2016 PRAVINBHAI KANUBHAI DESAI , 64, PRERNAPARK SOCIETY , NR. GOR NA KUA , MANINAGAR , AHMEDABAD . PAN: ABLPD2694K VS . I.T.O , WARD - 6(1 ) (3) , AHMEDABAD . (APPLICANT) ( RESPON D ENT ) ASSESSEE BY : SHRI S.N. DIVETIA , A.R REVENUE BY : SHRI B.P SRIVASTAVA , SR . DR / DATE OF HEARING : 29 / 03 / 201 9 / DATE OF PRONOUNCEMENT: 10 /04 /2 01 9 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE AS SESSEE AGAINST THE ORDER OF THE COMMISS IONER OF INCOME TAX (APPEALS) - 6 , AHMEDABAD, [ LD. CIT (A) IN SHORT] , DATED 14 / 0 5 / 2018 ARISING IN THE MATTER OF ASSESSMENT ORDER PASSED UNDER S. 143 (3) OF THE INCOME TAX ACT, 1961 ( HERE - IN - AFTER REFERRED TO AS 'THE ACT') DATED 04 / 10 / 201 7 RELEVANT TO ASSESSMENT YEAR (AY) 2015 - 16 . ITA NO .1579/AHD/2018 ASSTT. YEAR 2015 - 16 2 PAGE 2 OF 3 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1.1 THE ORDER PASSED U/S.250 ON 14.05.2018 FOR A.Y.2015 - 16 BY CIT(A) - 6, ABAD DISMISSING THE APPEAL ON THE PRELIMINARY GROUND OF DELAY IN FILING THE APPEAL UNSUPPORTED BY AN AFFIDAVIT IS WHOLLY ILLEGAL, UNLAWFUL AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 1.2 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND OR ON FACTS IN NOT APPRECIATING THAT THE REQUISITE AFFIDAVIT WAS ALREADY FILED IN HER OFFICE ON 17.04.2018 WITH THE PAPER APPEAL MEMO SO THAT THE DISMISSAL OF THE APPEAL ON THE GROUND OF ABSENCE OF AFFIDAVIT IS WHOLLY ILLEGAL AND UNLAWFUL. 2.1. THE LD.CIT(A) OUGHT TO HAVE ALLOWED AN OPPORTUNITY OF HEARING BY ISSUING A FRESH NOTICE OR DURING THE APPELLATE PROCEEDINGS THE ALLEGED ABSENCE OF AFFIDAVIT IN SUPPORT OF THE EXPLANATION FOR DELAY. 2.2 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD.CIT(A) OUGHT NOT TO HAVE HELD THAT THERE WAS NO JUSTIFIABLE REASON FOR FILING THE APPEAL LATE. THE LD. CIT(A) HAS NOT DISPUTED THE EXPLANATION GIVEN DURING THE COURSE OF APPELLATE PROCEEDINGS IN RESPECT OF DELAY IN FILING THE APPEAL WHICH WAS SUFFICIENT TO CONDONE THE DELAY. IT IS, THEREFORE, PR AYED THAT THE ORDER PASSED BY CIT(A) DISMISSING THE APPEAL BE QUASHED AND THE APPEAL MAY BE HEARD ON MERITS OF THE CASE. 3. THE LEARNED AR FOR THE ASSESSEE AT THE OUTSET SUBMITTED THAT THERE WAS A DELAY IN FILING THE APPEAL BEFORE THE LEARNED CIT (A) BY 1 22 DAYS. ACCORDINGLY , THE ASSESSEE BEFORE THE LEARNED CIT (A) FILED THE CONDONATION PETITION DATED 17 TH APRIL 2018 ALONG WITH THE AFFIDAVIT OF THE ACCOUNTANT. HOWEVER , THE LEARNED CIT (A) INADVERTENTLY WITHOUT TAKING THE NOTE OF SUCH CONDONATION PETITION R EJECTED THE APPEAL OF THE ASSESSEE BY OBSERVING THAT THE ASSESSEE FAILED TO FILE THE CONDONATION PETITION FOR THE DELAY IN FILING THE APPEAL . AS SUCH THE APPEAL WAS DECIDED BY THE LEARNED CIT (A) EX PARTE AND WITHOUT DECIDING THE ISSUE ON MERIT. ITA NO .1579/AHD/2018 ASSTT. YEAR 2015 - 16 3 PAGE 3 OF 3 IN VIEW OF THE ABOVE , THE LEARNED AR FOR THE ASSESSEE BEFORE US REQUESTED TO RESTORE THE ISSUE TO THE FILE OF LEARNED CIT (A) FOR FRESH ADJUDICATION AS PER THE PROVISIONS OF LAW AND ON MERIT AFTER CONDONING THE DELAY. 4. ON THE OTHER HAND, THE LD. DR DID NOT OBJ ECT IF THE MATTER IS RESTORED TO THE LD. CIT - A FOR FRESH ADJUDICATION AS PER THE PROVISIONS OF LAW. 5. HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. FROM THE PRECEDING DISCUSSION , WE NOTE THAT THE ASSESSEE HAS FILED THE CONDONATION PETITION WHICH WAS NOT CONSIDERED BY THE LD. CIT - A INADVERTENTLY. THE REASONS FOR THE DELAY IN FILING THE APPEAL BEFORE THE LD. CIT - A WAS ATTRIBUTABLE TO THE ACCOUNTANT WHO WAS NEGLIGENT AS EVIDENT FROM HIS AFFIDAVIT AVAILABLE O N RECORD. THEREFORE WE ARE OF THE VIEW THAT THE ASSESSEE SHOULD NOT SUFFER DUE TO THE MISTAKE AND NEGLIGENT APPROACH OF THE ACCOUNTANT. ACCORDINGLY , IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE DIRECT THE LD. CIT - A TO CONDONE THE D ELAY AND ADJUDICATE THE ISSUE ON MERIT AS PER THE PROVISION OF LAW. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT , THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE COURT ON 10 /04 / 2019 AT AHMEDABAD. - SD - - SD - (RAJPAL YADAV ) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (TRUE COPY) A HMEDABAD; DATED 10 / 04 /2019 M ANISH