JITENDRA AMARLAL NAGPAL, MUMBAI V. DY.COMMISIONER OF INCOME TAX, MUMBAI

ITA 2389/MUM/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 5300 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-11-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: F
• Next Hearing Date: 15-10-2023
• Assessment Year: 2019-2020
• Appeal Filed On: 07-07-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Reasonable cause; Condonation of delay; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “F”, MUMBAI BEFORE SHRI NARENDRA KUMAR CHOUDHRY, HON'BLE JUDICIAL MEMBER & SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER ITA NO. 2389/MUM/2023 (A.Y. 2019-20) Jitendra Amarlal Nagpal 396, Swan Lake, 14 th Road Khar (W), Mumbai – 400052 PAN: AAAPN7150J v. ITO – Central Circle – 8(4) Room No. 658, 6 th Floor Aayakar Bhavan, M.K. Road Mumbai - 400020 (Appellant) (Respondent) Assessee Represented by : Shri Jayant Bhatt Department Represented by : Shri Ujjawal Kumar Chavan Date of conclusion of Hearing : 16.10.2023 Date of Pronouncement : 15.11.2023 O R D E R PER S. RIFAUR RAHMAN (AM) 1. This appeal is filed by the assessee against order of the Learned Commissioner of Income Tax (Appeals)-50, Mumbai [hereinafter in short “Ld.CIT(A)”] dated 15.03.2023 for the A.Y.2019-20. ITA NO. 2389/MUM/2023 (A.Y. 2019-20) Jitendra Amarlal Nagpal Page No.| 2 2. At the outset, we observe that the present appeal is filed by the assessee with a delay of 55 days and assessee also filed a petition in this regard and prayed for condonation of delay. Assessee filed petition for condonation of delay and submitted as under: - “Sub: application for condonation of delay in filing an appeal before the Hon'ble ITAT Reference above I would like to state that in my case order of the Ld. CIT(A) was passed ex-parte merely by stating that the appellant had not paid the appeal fees despite I had made such payment but inadvertently writing wrong assessment Year. Nevertheless when it was pointed out to me I had made the additional payment of appeal fees and filed the copy of the same. However without considering the same the Id. CIT(A) has disposed off the appeal on technical ground stating that the appeal fees were not paid and hence the appeal is dismissed. . In this regards I had given all my papers for further action to my consultants and had also paid the appeal fees of Rs. 10000/- however it appears that the appeal is delayed by some days. Since I was relying on my consultants delay may be condoned and that the appeal may be heard on merit.” 3. Ld. DR objected for the condonation of delay and however, he has not filed any submissions against the petition as well as the facts described in the above petition. 4. On a perusal of the petition and the reasons explained therein for the delay in filing the appeal, we find the assessee is prevented with ITA NO. 2389/MUM/2023 (A.Y. 2019-20) Jitendra Amarlal Nagpal Page No.| 3 reasonable cause in filing the appeal in time. Thus we condone the delay of 55 days and admit the appeal for disposing off the same on merits 5. Assessee has raised following grounds in its appeal: - “1. Under the facts and circumstances of the case and in law the order passed by the ld.CIT(A) being bad in law on various counts and that, the same should be set aside. 2. Under the facts and circumstances of the case and in law the Ld. CIT(A) has passed the order in limine without giving any opportunity to explain the alleged non payment of appeal fees considered by him as also ignoring the submission made in this regard. 3. Under the facts and circumstances of the case and in law the Id. CIT(A) has violated the principles of Natural justice and hence the order passed without affording any opportunity of being heard on the subject matter being ground for dismissing the appeal being bad in law and hence the order should be set aside. 4. Under the facts and circumstances of the case and in law the ld. CIT(A) has erred in not dealing with the issues raised by the appellant in the appeal memo filed by the appellant. 5. Under the facts and circumstances of the case and in law the ld. CIT(A) has erred in not considering the fact that the appellant had already paid the appeal fees twice and hence the order passed by the Ld. CIT(A) being bad in la and that the same should be set aside.” ITA NO. 2389/MUM/2023 (A.Y. 2019-20) Jitendra Amarlal Nagpal Page No.| 4 6. Ld. Counsel for the assessee submits that Ld.CIT(A) passed order without providing adequate opportunity of being heard to the assessee, therefore, considering additions/disallowance made by the Assessing Officer, Ld. Counsel for the assessee requested that the matter may be restored to the file of the Ld.CIT(A). 7. Ld. DR has no serious objection in remitting the matter back to the file of the Ld.CIT(A). 8. Considered the rival submissions and material placed on record, on a perusal of the Ld.CIT(A) order, we notice that Ld. CIT(A) has dismissed the appeal of the assessee by observing that “failure on the part of the appellant to substantiate his claim, as elaborated above, the present appeal is held to be non-maintainable and invalid in terms of the provisions of section 249(1) of the Act and the same is dismissed in limine without any discussion on merits or any other aspects”. Considering the totality of facts and submissions of the Ld. AR and keeping in view the additions/disallowance made by the Assessing Officer, we are of the opinion that assessee should be given one more opportunity of being heard. Thus, this appeal is restored to the file of the Ld.CIT(A) for denovo adjudication in accordance with law. Assessee shall cooperate with the ITA NO. 2389/MUM/2023 (A.Y. 2019-20) Jitendra Amarlal Nagpal Page No.| 5 proceedings before the Ld.CIT(A) without taking unnecessary adjournments. Needless to say that the Ld.CIT(A) shall provide adequate opportunity of being heard to the assessee. 9. In the result, appeal filed by the assessee is allowed for statistical purpose. Order pronounced in the open court on 15 th November, 2023. Sd/- Sd/- (NARENDRA KUMAR CHOUDHRY) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 15.11.2023 Giridhar, Sr.PS Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// BY ORDER (Asstt. Registrar) ITAT, Mum