Nileshkumar Shankarbhai Patel, Ahmedabad V. The ITO, Ward-7(2)(3), Ahmedabad

ITA 2408/AHD/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2183 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2015-2016
• Appeal Filed On: 11-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay; Set aside
• Section: 69A

Judgement Text

, A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT) BEFORE SHRI RAJPAL YADAV, VICE-PRESIDENT AND SHRI AMARJIT SINH, ACCOUNTANT MEMBER ITA NO.2408/AHD/2018 / ASSTT.YEAR : 2015-16 NILESHKUMAR SHANKARBHAI PATEL 40, NATRAJ SOCIETY OPP: ADARSH HIGH SCHOOL BHARGAV ROAD KUBERNAGAR AHMEDABAD 382340 PAN : AYQPP 9893 E VS. ITO, WARD - 7(2)(3) AHMEDABAD. ( APPLICANT ) ( RESPONENT ) ASSESSEE BY : SHRI M.K. PATEL, AR REVENUE BY : SHRI SHAURYA S. SHUKLA, SR.DR / DATE OF HEARING : 01/12/2020 / DATE OF PRONOUNCEMENT: 01/12/2020 !'/ O R D E R PER RAJPAL YADAV, VICE-PRESIDENT: THIS IS ASSESSEES APPEAL FILED AGAINST THE ORDER O F LD.CIT(A)-7, AHMEDABAD DATED 6.9.2018 PASSED FOR THE ASSESSMENT YEAR 2015-16. 2. THE ISSUE RAISED BY THE ASSESSEE IN THE APPEAL I S THAT THE LD.CIT(A) WHILE DECIDING HIS APPEAL EXPARTE REGARDING VALIDITY OF ADDITION OF RS.1,05,11,374/- MADE UNDER SECTION 69A OF THE ACT, DID NOT CONDONE DELAY IN FILING APPEAL AND NOT PROVIDED OPPORTUNITY OF HEARING TO THE ASSESSEE. ITA NO.2408/AHD/2018 2 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA S FILED HIS RETURN OF INCOME ELECTRONICALLY ON 12.4.2016 DECLARING TOTAL INCOME AT RS.2,06,800/-. THE CASE OF THE ASSESSEE WAS SELECT ED FOR SCRUTINY ASSESSMENT BY ISSUANCE OF NOTICE UNDER SECTION 143( 2) OF THE ACT. SCRUTINY ASSESSMENT WAS FINALIZED AT AN INCOME OF R S,1,07,18,170/- BY MAKING AN ADDITION OF RS.1,05,11,374/- UNDER SECTIO N 69A BEING UNEXPLAINED RECEIPT. THIS ADDITION WAS CHALLENGED BEFORE LD.CIT(A), BUT THE LD.CIT(A) DISMISSED THE APPEAL OF THE ASSES SEE EX PARTE IN LIMINE DUE TO DELAY IN FILING APPEAL, FOR WHICH THE ASSES SEE FAILED TO GIVE SUFFICIENT REASONS WHICH PREVENTED THE ASSESSE E FROM FILING THE APPEAL IN TIME. AGGRIEVED BY THIS ORDER OF THE CIT (A), THE ASSESSEE IS NOW BEFORE THE TRIBUNAL. 4. BEFORE US THE LD.COUNSEL FOR THE ASSESSEE SUBMIT TED THAT ALONG WITH FORM NO.35, THE ASSESSEE HAS FILED A PETITION FOR CONDOLNATION OF DELAY IN FILING THE APPEAL BEFORE THE LD.CIT(A) AND HE EXPLAINED DELAY OF 28 DAYS WHICH WAS CAUSED DUE TO ILLNESS OF THE A SSESSEE. IT IS SUBMITTED THAT ORDER OF THE AO DATED 31.12.2017 WAS TO BE APPEALED ON OR BEFORE 31.01.2018, BUT DUE TO ILL-HEALTH CAUS ED BY COLITIS FROM 25 TH JANUARY TO 25 TH FEBRUARY, 2018 HE COULD NOT COMPLETE LEGAL FORMALITIES, WHICH RESULTED IN DELAY IN FILING APPE AL WELL IN TIME. THE LD.COUNSEL FOR THE ASSESSEE PLACED ON RECORD COPY O F FORM NO.35 AND THE COPY OF PETITION FOR CONDONATION OF DELAY, AND SUBMITTED THAT SEEING SMALL DELAY OF 28 DAYS, DUE TO GENUINE AND BONA FIDE REASONS, THE EX PARTE ORDER OF THE LD.CIT(A) DISMISSING THE APPEAL OF TH E ASSESSEE AS BEING TIME BARRED, MAY BE SET ASIDE, AN D THE CIT(A) MAY ITA NO.2408/AHD/2018 3 BE DIRECTED TO RE-ADJUDICATE THE APPEAL OF THE ASSE SSEE ON MERIT. ON THE OTHER HAND, THE LD.DR RELIED ON THE ORDER OF TH E REVENUE AUTHORITIES. 5. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND GONE TH ROUGH THE RECORD. WE SHALL FIRST TAKE-UP THE ISSUE OF CONDONATION OF DELAY IN FILING APPEAL BEFORE THE LD.CIT(A). ASSESSEE HAS FILED APPEAL BE FORE FIRST APPELLATE AUTHORITY WHICH WAS LATE BY 28 DAYS. BEFORE US, AS SESSEE HAS FILED COPY OF FORM NO.35 AND THE CONDONATION PETITION, IN WHICH, THE ASSESSEE HAS EXPLAINED THE REASONS FOR DELAY. WE ARE OF THE VI EW THAT ON SEEING QUANTUM OF DELAY BEING 28 DAYS, AND THE REASONS EXP LAINED BY THE ASSESSEE, THE LD.CIT(A) OUGHT TO HAVE TAKEN A LENIENT VIEW IN CONDONING THE DELAY AND CONSIDERING THE CASE OF THE ASSESSEE ON MERIT. WE FIND THAT EXPRESSION SUFFICIENT CAUSE EMPLOYED IN SUB-SECTION 3 OF SEC TION 249 OF INCOME TAX ACT PROVIDES POWERS TO THE LD.COMMISSIONER TO C ONDONE THE DELAY IN FILING THE APPEAL BEFORE THE COMMISSIONER IF HE IS SATISFIED THAT THE APPELLANT HAD SUFFICIENT CAUSE FOR NOT PRESENTING I T WITHIN THAT PERIOD . WE ARE OF THE VIEW THAT THE REASONS EXPLAINED BY TH E ASSESSEE BEFORE THE LD.CIT(A) ARE SUFFICIENT ENOUGH TO CONDONE DELAY OF 28 DAYS, AND DECIDE THE APPEAL ON MERIT. THOUGH THE ASSESSEE HAS GIVEN REASONS FOR DELAY IN HIS PETITION FOR CONDONATION OF DELAY, LD.CIT(A) HAS NO T APPRECIATED THE FACTS IN RIGHT PERSPECTIVE AND NOT JUSTIFIED IN NOT CONDONIN G THE DELAY AND DISMISSING THE APPEAL IN LIMINE . THEREFORE, WE CONDONE THE DELAY IN FILING APPEAL BEFORE THE LD.CIT(A) AND SET ASIDE ORDER OF THE LD.CIT(A) THE REMIT THE FILE BACK TO THE LD.CIT(A) FOR ADJUDICATING THE ISSUES RAISED IN THE APPEAL OF THE ASSESSEE ON MERIT. NEEDLESS TO MENT ION HERE THAT THE ASSESSEE SHALL COOPERATE WITH THE LD.CIT(A) AND NOT SEEK UNN ECESSARY ADJOURNMENTS ITA NO.2408/AHD/2018 4 DURING THE PROCEEDINGS. THE LD.CIT(A) SHALL ADJUDIC ATE THE CASE AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 1 ST DECEMBER, 2020 AT AHMEDABAD. S D / - (AMARJIT SINGH) ACCOUNTANT MEMBER S D / - (RAJPAL YADAV) VICE-PRESIDENT