Randhir Mahendra Bhagat, Surat V. Dy.CIT,Circle-4, Surat

ITA 175/SRT/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 1661 (ITAT-SURAT)
• Duration Of Justice: 4 year(s) 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 19-09-2022
• Assessment Year: 2013-2014
• Appeal Filed On: 11-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Recovery proceedings; Opportunity of being heard; Principle of natural justice; Condonation of delay; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM आयकर अपील सं./ITA No.175/SRT/2018 Assessment Year: (2013-14) (Virtual Court Hearing) Randhir Mahendra Bhagat, 99, Vadva Street, Nana Bazar, Dumas Road, Surat. Vs. The DCIT, Central Circle-4, Surat. èथायीलेखासं./जीआइआरसं./PAN/GIR No.: ABIPB6423H (Appellant) (Respondent) Assessee by Shri P. M. Jagasheth, CA Respondent by Shri Vinod Kumar, Sr. DR Date of Hearing 20/09/2022 Date of Pronouncement 21/09/2022 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeals filed by the assessee, pertaining to the Assessment Year (AY) 2013-14, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals)-4, Surat [in short “the ld. CIT(A)”] in Appeal No. CAS/4/305/2015-16, dated 08.11.2017 which in turn arises out of a penalty order passed by the Assessing Officer under section 271AAB of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), dated 23.09.2015. 2. At the outset, Ld. Counsel for the assessee informs the Bench that appeal filed by the assessee for AY.2013-14 is barred by limitation by thirty seven (37) days. The assessee filed the petition for condonation of delay. The contents of the petition of condonation of delay are reproduced below: “In respect of the above, I would like to submit that I have filed an appeal under section 253(1) of the Income Tax Act, 1961 on 12.03.2018 vide ITA No. 175/SRT/2018 against the order of the commissioner of Income Tax (Appeals)-4, Surat relating to AY.2013-14 made on the 08.11.2017. Though this appeal should have been filed in the office of the Tribunal on or before the counting the period of sixty days from the date of communication of the order, but it was filed delayed by 37 days because my father-in-law had heart attack, he was hospitalized and under treatment of heart disease, his operation was done on Page | 2 ITA.175/SRT/2018/AY.2013-14 Randhir Mahendra Bhagat 12.12.2017, hence, I had grievously busy for treatment of my father in law’s health. Due to this, I could not provide CIT(A)’s order to my Authorized Representative within time, when the recovery proceedings initiated against me and call received from the Income Tax Department for recovery of demand, I consulted with my Authorized Representative and filed appeal before the Honourable ITAT, Surat on 12.03.2018. Hence, necessary arrangement could not be made for filling of appeal before Hon'ble ITAT, Surat Bench, Surat in time. Copies medical papers of my Father-in-law are attached herewith. In view of the above fact, it is clear that the delay in submission of the appeal is due to good and sufficient reasons, therefore, pray that the delay in filling the appeal should be condoned and the appeal should be treated as filed within the allowed time.” 3. On the other hand, Learned Departmental Representative (Ld. DR) for the Revenue opposed the prayer for condonation of delay and stated that such delay should not be condoned. 4. We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee. We note that assessee’s father- in-law suddenly got heart attack, so the assessee was busy for treatment of his father-in-law. To prove this, assessee has submitted necessary medical documents before the Bench. Thus, assessee could not submit the relevant documents to his authorized representative. Considering these facts, we note that assessee has explained the delay of 37 days. We are 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, we have to do justice and the Hon’ble Supreme Court in the case of Collector, Land Acquisition vs Mst. Katiji 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.” 5. When we weigh these two aspects then the side of justice becomes heavier and casts a duty on us to deliver justice. The reasons given in the affidavit for condonation of delay are convincing and these reasons would Page | 3 ITA.175/SRT/2018/AY.2013-14 Randhir Mahendra Bhagat constitute reasonable and sufficient cause to condone delay. We, therefore, condone the delay and admit the appeal for hearing. 6. On merits, Ld. Counsel for the assessee, at the outset, argued that order passed by the ld. CIT(A) is an ex parte order without adjudicating the issue on merits. The Ld. Counsel explained the reasons for non-appearance before the ld. CIT(A) stating that notices for hearing were not served on the assessee and therefore he could not appear before the ld. CIT(A), hence, Ld. Counsel contended that one more opportunity should be given to the assessee to plead his case before the First Appellate Authority. 7. On the other hand, Ld. DR for the Revenue pleaded that there is same address in appellate order and in Form No. 36, therefore it is just merely an excuse that notice of hearing was not served on the assessee. In fact, notice of hearing was served on assessee, hence the appeal should be dismissed at this stage only and no further innings should be given to the assessee. 8. Considering the above facts, we note that assessee could not plead his case successfully before the ld. CIT(A). We also note that 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 on the material available on record. Hence, we are of the view that one more opportunity should be given to the assessee to plead his case before the ld. CIT(A). We 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 delving much deeper into the merits of the case, in the interest of justice, we 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, we 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. Page | 4 ITA.175/SRT/2018/AY.2013-14 Randhir Mahendra Bhagat 9. In the result, appeal filed by the assessee is allowed for statistical purposes. Order is pronounced in the open court on 21/09/2022 by placing the result on the Notice Board as per Rule 34(5) of the Income Tax (Appellate Tribunal) Rule 1963. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 21/09/2022 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat