Prashant R. Mamlatdarna, Bharuch V. ITO-Ward-1(5), Bharuch

ITA 242/SRT/2022

AI Insights

The case involves an appeal by Prashant R Mamlatdarna against the order of the Commissioner of Income Tax (Appeals)-3, Vadodara, which arose from an assessment order passed under sections 144 and 147 of the Income Tax Act, 1961. The appeal was initially barred by limitation, being filed 867 days late, primarily due to disruptions caused by the COVID-19 pandemic. The Tribunal considered the circumstances of the pandemic and the time taken by the assessee's consultant to prepare the appeal, leading to the condonation of the delay. The Tribunal noted that the order from the CIT(A) was passed ex parte and was non-speaking, thus remitting the case back for a fresh decision on merits.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 301970 (ITAT-SURAT)
• Duration Of Justice: 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-01-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 21-08-2022
• Other Referred Cases: Suo Motu Writ Petition (C) No.3 of 2022
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Assessment record; Set aside
• Section: 144; 143(3); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A.L.SAINI, AM आयकर अपील स ं ./ITA No.242/SRT/2022 (िनधाªरणवषª / Assessment Year: (2010-11) (Physical Court Hearing) Prashant R Mamlatdarna 6, Pritam Society No.1 Kasak, Bharuch-392001 Vs. Income Tax Officer, Ward-1(5), 1 st Floor, Harkunj Building, Above Bank of Baroda, Station Road, Bharuch ̾थायीलेखासं./जीआइआरसं./PAN/GIR No.: ADEPM 4216 H (Appellant ) (Respondent) िनधाªåरती कì ओर से /Assessee by : Ms. Himali Mistry, C.A राजÖव कì ओर से /Respondent by : Shri Vinod Kumar–Sr-DR स ु नवाई कì तारीख/ Date of Hearing : 25/01/2023 घोषणा कì तारीख/Date of Pronouncement : 30/01/2023 आदेश / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: Captioned appeal filed by the assessee, pertaining to assessment year 2010- 11, is directed against the order passed by the Learned Commissioner of Income Tax(Appeals)-3, Vadodara [‘Ld. CIT(A) for short] dated 30.01.2020, which in turn arises out of an assessment order passed by the Assessing Officer u/s 144 r.w.s. 147 of the Income Tax Act, 1961, dated 21.11.2017. 2. At the outset, we note that appeal filed by the assessee is barred by limitation by 867 days. The Ld. counsel for the assessee submitted an affidavit and prayed before the Bench to condone the delay. The contents of said affidavit, is reproduced below: “(1) I hold PAN ADEPM 4216 H having jurisdiction with Income Tax Office, Ward-1(1), Bharuch. (2) I say that for the A.Y. 2010-11, the Commissioner of Income Tax (appeals) had passed u/s 250 on 30.01.2020 which was received by me on 07.02.2020. Page | 2 ITA No.242/SRT/2022 A.Y. 10-11 Prashant R Mamlatdarna (3) I further say that after receipt of the order, due to Covid-19 outbreak, the order remained with me and could not be supplied to my tax consultant in due time. (4) Due to this delay, the appeal before Income Tax Appellate Tribunal Surat could not be filed in time. (5) I say that I am interests in filing of appeal and due to the inadvertent, it could not be filed in time. (6) I have also paid necessary challan towards fees of Tribunal. (7) This affidavit is made to corroborate the above fact. (8) For this affidavit, e-stamp bearing e-certificate No. IN-GJ16133202380952U has been used.” 3. Based on the contents of affidavit for condonation of delay, Ld. counsel argued that most of the period of delay is attributable to the period of Covid-19, and effective delay is only 85 days. Therefore, such delay should be condoned. 4. On the other hand, Ld. DR for the Revenue stated that such huge delay should not be condoned as the assessee has also not appeared before the Assessing Officer during assessment proceedings and he could not appear in First Appellate Stage. Therefore, for such type of assessee, who does not respect the law, the delay should not be condoned and the appeal may be dismissed at this stage. 5. We have heard both the parities and perused the materials available on record. In this preliminary ground of assessee’s appeal we note that total delay is 867 days, however most of the delay period is attributable to Covid-19 pandemic, which started from 15.03.2020 and ends on 20.02.2022. If the delay so attributable to Covid-19 pandemic is excluded then there would be 85 days effective delay. Hence, the delay of filing in assessee’s appeal in real sense is for 85 days and for that assessee has submitted affidavit for condonation of such delay, wherein assessee stated that such delay was unintentional on the part of assessee because of time taken by the consultant of assessee to prepare the appeal within the Covid-19 Page | 3 ITA No.242/SRT/2022 A.Y. 10-11 Prashant R Mamlatdarna pandemonic period. Such delay has occurred because of time taken by the assessee due to Covid-19 pandemic, to supply necessary documents and papers to his consultant. Considering the submission of both the parties, we find that the assessee’s delay in filing appeal falls within the period covered by the order of Hon'ble Apex Court in Suo Motu Writ Petition (C) No.3 of 2022 dated 10.01.2022. The effective delay is only for 85 days, and these days are connected with Covid-19 pandemic, as the assessee could not supply necessary documents and papers to his consultant due to fear of Covid-19 pandemic, as the pandemic is contagious was not fully recovered. Hence, in these circumstances, the delay of appeal filed by assessee is condoned and admitted for adjudication on merits. Now adverting to the merits of the case. 6. At the outset itself, Learned Counsel for the assessee submitted that assessee could not appear before the Ld. CIT(A) as the necessary papers were not readily available for submitting before Ld. CIT(A) The ld. Counsel also argued that assessee could not appear during the appellate proceedings Consequently, Ld. CIT(A) passed ex parte order. The Ld. counsel for the assessee to substantiate her arguments that assessee has a good case on merit and is likely to succeed, if one more opportunity is allowed to hear the case on merits and the assessee be allowed to file necessary evidence in support of its claim before the Ld. CIT(A). 7. On the other hand, ld. Sr.DR for the Revenue submits that assessee has been given four opportunities by Ld. CIT(A) to plead its case. The Ld. DR has fairly agreed that since the order passed by Ld. CIT(A) is ex parte, therefore matter may be remitted back to the file of Ld. CIT(A) for afresh adjudication in accordance with law. 8. We have heard both the parties and we note that in the assessee’s case under consideration, the assessment was carried out u/s 143(3) of the Act and the impugned order passed by the ld. CIT(A), is an ex parte order and non-speaking order, therefore, we do not wish to make any comments on the merits of the grounds raised by the assessee. We note that ld. CIT(A) has not decided various Page | 4 ITA No.242/SRT/2022 A.Y. 10-11 Prashant R Mamlatdarna issues ground-wise in respect of the grounds raised by the assessee in memo of appeal as per the mandate of provisions of section 250(6) of the Act. The ld. CIT(A) has not examined assessment records and relevant documents and has not passed any speaking order. Considering the above facts, 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, 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 after giving reasonable opportunity of hearing to assessee. The assessee is directed to appear before the ld.CIT(A) as and when the date of hearing and to provide with all necessary evidence and information without any further delay and not to seek the adjournment without any valid reasons. The ld.CIT(A) is also directed to dispose the appeal as early as possible in accordance with law. Thus, grounds of appeal raised by assessee are allowed for statistical purposes. 9. In the result, the appeal of the assessee is allowed for statistical purposes. Order is pronounced on 30/01/2023 by placing the result on the Notice Board. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER Surat/िदनांक/ Date: 30/01/2023 Dkp Outsourcing Sr.P.S. Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. Pr.CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // True Copy // Assistant Registrar/Sr. PS/PS ITAT, Surat