A. K. Builders, Daman and Diu V. Income Tax Officer Daman Ward, Daman

ITA 238/SRT/2022

AI Insights

The case involves A.K. Builders appealing against the order of the CIT(A) which dismissed their appeal for want of proper prosecuting without passing a speaking order as required by Section 260(6) of the Income Tax Act. The assessee contended that the appeal was not admitted properly and sought a personal hearing. The ITAT considered the circumstances of the delay in filing the appeal, which was attributed to the authorized representative being out of the country and only accessing the order upon return. The ITAT found the delay to be unintentional and not deliberate, thus condoning it. On merits, the ITAT noted that the CIT(A) had dismissed the appeal without considering the substantive merits, leading to the restoration of the case to CIT(A) for a fresh decision.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 301543 (ITAT-SURAT)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 20-04-2023
• Assessment Year: 2008-2009
• Appeal Filed On: 11-08-2022
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Set aside
• Section: 68; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH (SMC), SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER ITA No. 238/Srt/2022 (Assessment Year 2008-09) (Physical hearing) A.K. Builders, Jay Apartment, Kathiria, Nani Daman, Daman & Diu (UT)- 396210. PAN No. AAMFA 7826 Q Vs. I.T.O., Daman Ward, Daman. Appellant/ assessee Respondent/ revenue Assessee represented by Shri Suresh.K. Kabra, CA Department represented by Shri Vinod Kumar, Sr. DR Date of hearing 21/04/2023 Date of pronouncement 27/04/2023 Order under Section 254(1) of Income Tax Act PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the assessee is directed against the order of learned National Faceless Appeal Centre (NFAC), Delhi/Commissioner of Income Tax (Appeals) (in short, the ld. CIT(A)) dated 29/04/2022 for the Assessment Year (AY) 2008-09. The assessee has raised following grounds of appeal: “1. The ld. CIT(A) was not just and proper on the facts of the case and in law in not admitting the appeal and dismissing the appeal for want of proper prosecuting and not passing a speaking order as required by Section 260(6). 2. Prayer. 2.1 The ld. CIT(A) may be directed to hear the appeal on merits. 2.2 Personal hearing may be granted. 2.3 Any other relief that your honours may deem fit may be granted. 3. The assessee craves leave to add, amend, modify alter or delete any of the grounds at the time of hearing.” ITA No. 238/Srt/2022 A. K. Builder Vs ITO 2 2. Rival submissions of both the parties have been heard and record perused. From perusal of record, I find that there is delay of 44 days in filing appeal before the Tribunal. The assessee has filed an application for condonation of delay in the form of affidavit. In the affidavit, Shri Ambrish G Intwala, stated that he is partner of assessee firm has specifically contended that this appeal has been filed before this Tribunal on 12/08/2022. In the Form- 36, the date of receipt of ld. CIT(A) was mentioned as 30/04/2022. In fact, the order of ld. CIT(A) was downloaded on 30/06/2022 at the office of learned authorized representative Shri Jignesh Vasani. As Shri Jignesh Vasani was out of India from 08/05/2022 to 28/06/2022 and the order was received on his e-mail. When he came to India on 28/06/2022 and he checked the mail, they he found the order of ld. CIT(A) and thereafter matter was discussed with assessee. The ld. AR of the assessee submits that if the date of receipt of the order of ld. CIT(A) is considered as 30/06/2022, then there is no delay in filing appeal before this Tribunal. The ld. AR of the assessee submits that, if the delay is not condoned, then in that eventuality, the assessee will suffer irreparable loss and injury and therefore, he prayed for condonation of delay. 3. In alternative and without prejudice submission, the ld. AR of the assessee submits that if the Bench may condone the delay then the matter may be restored to the file of ld. CIT(A) for deciding the issue afresh because the ITA No. 238/Srt/2022 A. K. Builder Vs ITO 3 ld. CIT(A) has passed the ex parte order without considering the merit of the case. 4. On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the revenue has opposed the plea of condonation of delay. The ld SR DR for the revenue submits that the assesse has not condoned the delay in filing appeal in a proper way. The approach of the assesse is explaining the delay id casual. 5. I have considered the submissions of both the parties and seen the record carefully. The impugned order was passed by ld CIT(A) on 29.04.2022 and the present appeal is filed on 12.08.2022. The ld AR for the assessee vehemently argued that authorized representative Shri Jignesh Vasani, who was pursuing appeal before ld CIT(A) was out of India from 08/05/2022 to 28/06/2022 and the order was received on his e-mail. When he came to India on 28/06/2022 and he checked the mail, they he found the order of ld. CIT(A) and thereafter matter was discussed with assessee and the appeal was filed immediately before Tribunal. The application of the assessee is also supported with the affidavit of partner of assessee namely Amresh G Intwala. Considering the facts and the submissions of ld AR for the assessee I have no reasons to disbelieve his contention. I find that the delay in filing appeal is not intentional and deliberate, otherwise also, the assessee is not likely to get any benefit in filing appeal belatedly. Otherwise the delay in not very big. Thus, considering the all ITA No. 238/Srt/2022 A. K. Builder Vs ITO 4 facts and the contention of ld AR for the assessee the delay of 44 days in filing appeal is condoned. 6. On merit, the ld. AR for the assessee submits that Ld. CIT(A) dismissed the appeal of assessee in an ex parte order without considering the merit of the case. The Ld. CIT(A) dismissed the appeal of assessee without adjudicating the various grounds of appeal as per mandate of Section 250(6) of the Income Tax Act, 1961 (in short, the Act). The ld. AR of the assessee submits that the assessee has a good case on merit and likely to succeed if the assessee is to be heard and the appeal is to be decided on merit. The ld AR for the assessee submits that even the facts mentioned in the assessment order was not considered by ld CIT(A). The ld AR for the assessee prayed that matter may be restored back to the file of Ld. CIT(A) for adjudicating the issue afresh in accordance with law and he undertakes on behalf of the assessee to be more vigilant in attending the hearing before ld CIT(A). 7. On the other hand, the learned Senior Departmental Representative (ld. Sr DR) for the revenue supported the order of ld. CIT(A) and submitted that the Assessing Officer as well as ld CIT(A) granted sufficient opportunity to the assessee. The assessee failed to availed such opportunity and now taking plea that sufficient opportunity was not given to him. The assessee has no regards to the public authorities in attending the hearing before them and now claiming that no fair or reasonable ITA No. 238/Srt/2022 A. K. Builder Vs ITO 5 opportunity was not given to the assessee. The assesse does not deserve any leniency, the ld CIT(A) passed the order after considering all the facts available before him. 8. I have heard the submissions of both the parties and have gone through the orders of lower authorities carefully. I find that the Assessing Officer while passing the assessment order under section 143(3) r.w.s. 147 of the Act on 22/02/2016 by making addition under section 68 on account of unexplained cash credit of Rs. 10.00 lacs. On further appeal before, ld. the ld. CIT(A) dismissed the appeal of assessee by holding that the assessee has not provided the complete Form 35, grounds of appeal and statement of acts at the time of filing of appeal. The assessee also failed to response to the notices. I find that the ld CIT(A) has not given his finding on the basic facts available on record in the form of statement of facts file with Form -35 or certain facts mentioned in the assessment order. I further find that the ld. CIT(A) has not adjudicated the grounds of appeal raised by assessee as per mandate of Section 250(6) of the Act. Section 250(6) mandates that order of ld. CIT(A) must contain facts of the case, points of determination and decision thereon and reasons of such decision. The ld CIT(A) in a single sentence concluded his finding that the assessee is not interested in perusing the appeal as the as the attitude of assessee is casual and non-serious with regard to this appeal. Considering the fact that ld. CIT(A) passed the ex parte order, therefore, the order of ld. CIT(A) ITA No. 238/Srt/2022 A. K. Builder Vs ITO 6 is set aside and all the grounds of appeal raised by the assessee are restored back to the file of ld. CIT(A)/NFAC to decide all the grounds of appeal afresh and in accordance with law. Needless to direct that before passing the order, the ld. CIT(A) shall grant reasonable opportunity of hearing to the assessee. The assessee is also directed to be more vigilant in future and not to cause further delay and seek adjournment without any valid reason and to furnish all the details and his submissions on various grounds of appeal raised by him, as soon as possible, if so desired without any further delay. In the result, the grounds of appeal raised by the assessee are allowed for statistical purposes. 9. In the result, the appeal of assessee is allowed for statistical purposes only. Order announced in open court on 27 th April 2023. Sd/- (PAWAN SINGH) JUDICIAL MEMBER Surat, Dated: 27/04/2023 *Ranjan Copy to: 1. Assessee – 2. Revenue – 3. CIT 4. DR 5. Guard File By order Sr. Private Secretary, ITAT, Surat