SARITA SABHAJEET YADAV, SILVASSA V. COMMISSIONER OF INCOME TAX(APPEAL), NATIONAL FACELESS CENTRE

ITA 217/SRT/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 1928 (ITAT-SURAT)
• Duration Of Justice: 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 26-05-2022
• Assessment Year: 2018-2019
• Appeal Filed On: 17-11-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SNEHAL AMBELAL MODI
• Keywords: Opportunity of being heard; Condonation of delay; Set aside
• Section: 143(1)

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. 217/SRT/2021 Assessment Year: (2018-19) (Physical Court H earing) Sarita Sabhajeet Yadav, 202, Daisy-A, Type-C, Nano City, Samarvarni, Silvassa DNH, Silvassa, Dadra and Nagar Haveli-396230. Vs. The CIT(A), NAFC, Delhi. èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AMKPY 0018 L (Appellant) (Respondent) Assessee by Shri Snehal Ambelal Modi, AR Respondent by Shri Vinod Kumar, Sr. DR Date of Hearing 27/05/2022 Date of Pronouncement 30/06/2022 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeal filed by the assessee, pertaining to Assessment Year (AY) 2018-19, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals), [in short “the ld. CIT(A)”], National Faceless Appeal Centre (NFAC), Delhi, in Appeal No. ITBA/NFAC/S/250/2021-22/1035665077(1), dated 17.09.2021 which in turn arises out of an assessment order passed by the Assessing Officer under section 143(1) of the Income Tax Act, 1961 (hereinafter referred to as “the Act”). 2. At the outset, Ld. Counsel for the assessee submitted that ld. CIT(A) did not condone the delay of 375 days in filling appeal before him and dismiss the appeal of the assessee. The Ld. Counsel submits that assessee has explained the delay in filling the appeal before the ld. CIT(A), despite of this delay was not condoned. Therefore, Ld. Counsel contended that suitable instruction may be given to the ld. CIT(A) to condone the delay and admit the appeal of the assessee on merit. Page | 2 217/SRT/2021/AY.2018-19 Sarita Sabhajeet Yadav 3. On the other hand, Learned Departmental Representative (Ld. DR) for the Revenue strongly opposed the prayer for condonation of delay and stated that the delay should not be condoned. 4. We have heard both the parties and on this preliminary issue and note that there is total delay of 375 days in filling the appeal before the ld. CIT(A). Out of 375 days, 90 days delay is attributable to COVID-19 Pandemic, therefore assessee need not to explain the delay of 90 days. 5. For balance delay in filling the appeal, the assessee submitted before the ld. CIT(A), the reasons which are given below: “Appellant’s Submission on late filling: The submission of appellant in response to the deficiency letter, is reproduced below: “On 26-04-2019 Deputy Commissioner of Income-tax (CPC), Bengaluru had passed the order u/s. 142(1)(a), my CA had replied on dt. 29.04.2019, my CA had informed me that the matter should be square up and wait for reply. I received the demand letter from Income-tax Office, Ward-2, Income-tax Office, Vapi for demand din:itba/com/f/17/2019-20/1024492028(1) dt. 30-01-2020. Then after I try to contact to my CA for the regarding the mater, but he was belonging from Mumbai, I can’t found his contact. Then after covid-19 start during the period of March, April, May & onwards. There are declared lock down in the surrounding areas, in all over India etc., therefore not submitted condonation of delay in regular time period. I received the order of Deputy Commissioner of Income-tax (CPC) Bengaluru in my case for assessment year 2018-19. The assessment order u/s 143(1)(a) passed on dt. 26.04.2019. Being aggrieved by the said order, I requested my advocate, Snehal Ambelal Modi to prefer an appeal to the Hon'ble Commissioner of the Income-tax (Apepal), Valsad. The appellant has submitted the reason for delayed in condonation of delay. The appellant has duly to file appeal and delay condition due to reason of corona virus covid-19. The appellant has submitted the condition of duly attested by notary as on dated 19.06.2020. Sir, the appellant had found the above reference notice as on dt. 14.06.2021 but the newly income tax portal version 2.0 is not working properly (very well) therefore there are being time passed with to submit rely within 10 days. Page | 3 217/SRT/2021/AY.2018-19 Sarita Sabhajeet Yadav My affidavit detailing the aforesaid facts, and these may kindly be placed before Hon'ble Commissioner of Income-tax (Appeal) for condonation of the short delay in submission of the appeal. Therefore, may I kindly request to accept my condonation of delay & reply of you letter for delay submit & highly oblige us.” 6. We have gone through the submission of the assessee and note that appeal pertains to Pandemic period of Covid-19, therefore a liberal approach should be adopted to condone the delay in filling the appeal. Apart from this, Ld. Counsel submitted before us that Income Tax portal version 2.0 was not working properly, therefore appeal could not be filed on time. We note that when site of Income Tax Department was not working properly then in that situation there should not be any mistake from the assessee’s side. 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.” 7. Therefore, based on these facts and circumstances, we note that assessee has explained the delay in a satisfactorily way, hence we condone the delay in filling the appeal and we direct the ld. CIT(A) to admit the assessee’s appeal and adjudicate assessee’s appeal on merit. 8. At the outset itself, the ld. Counsel for the assessee assailed the impugned order by contending that assessee could not represent his case before Ld. CIT(A) and the order being an ex parte order, stood vitiated on account of violation of principle of natural justice. Learned Counsel for the assessee submits that during the appellate proceedings, the assessee made the request to condone the delay in filling the appeal, however Ld. CIT(A) did not condone the delay and dismiss the appeal of the assessee. Therefore Ld. Counsel for the assessee contended that an another opportunity to contest Page | 4 217/SRT/2021/AY.2018-19 Sarita Sabhajeet Yadav the appeal before the First Appellate Authority may be granted to the assessee. The Learned DR for the Revenue has fairly agreed with the submission of the Ld. Counsel. 9. Considering the above facts, we note that assessee could not plead his case successfully before the ld. CIT(A). The Ld. CIT(A) also did not adjudicate the assessee’s appeal on merits. 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. 10. In the result, the appeal of the assessee is allowed for statistical purposes. Order is pronounced in the open court on 30/06/2022 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: 30/06/2022 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