Kalpeshbhai Naranbhai Rajpara, Paddhari, Rajkot V. Income Tax Officer, Ward - (2)(1)(2), Rajkot

ITA 35/RJT/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 0915 (ITAT-RAJKOT)
• Duration Of Justice: 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 18-01-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHISH KUMAR PANDEY
• Keywords: Condonation of delay; Set aside
• Section: 144; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, “SMC” RAJKOT BENCH, RAJKOT BEFORE DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER आयकर अपील सं./ITA Nos. 35 & 49/RJT/2024 (Assessment Year: 2010-11) (Hybrid Hearing) Kalpeshbhai Naranbhai Rajpara, 01, Naranka, Paddhari, Rajkot Rajkot-360001 Vs. The ITO, Ward-2(1)(2), Rajkot èथायीलेखासं./जीआइआरसं./PAN/GIR No.: ANPPR4592Q (अपीलाथȸ/Assessee) (Ĥ×यथȸ/Respondent) Ǔनधा[ǐरतीकȧओरसे/Assessee by : Shri Vimal Desai, AR राजèवकȧओरसे/Revenue by : Shri Ashish Kumar Pandey, Sr. DR स ु नवाईकȧतारȣख/ Date of Hearing : 15/07/2024 घोषणाकȧतारȣख/Date of Pronouncement : 16/07/2024 आदेश/ORDER Captioned two appeals filed by the same Assessee, pertaining to assessment year 2010-11, are directed against the separate orders passed by the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (in short ‘the Ld. CIT(A)/NFAC’), which in turn arise out of separate assessment order passed by the assessing officer (A.O.) u/s. 144 r.w.s. 147 of the Act, and separate penalty order passed by assessing officer u/s. 271(1)(b) of the Income Tax Act, 1961 (in short, ‘the Act’) dated 12-12- 2017 and 26-04-2018 respectively. I.T.A Nos 35 & 49/Rjt/2024 A.Y. 2010-11 Kalpeshbhai Naranbhai Rajpara vs. ITO 2 2. The appeal filed by the assessee in ITA No. 49/Rjt/2024 for assessment year 2010-11, is barred by limitation by 219 days. The assessee moved a petition for condonation of delay, requesting the Bench to condone the delay. The ld. Counsel for the assessee argued that the appeal against order of ld. CIT(A) could not be filed within the stipulated time-frame due to the fact that the assessee was not aware of the said order. As the said order was served through email. However, the primary email address registered in the e-portal belonged to the assessee's former tax consultant. The said order was not communicated by the tax consultant as there was a dispute between the assessee and the tax consultant regarding the fee payments. The assessee came to know about the concerned order when the appellate order u/s 250 consequence to order u/s 147 r.w.s. 144 was passed on 22/11/2023. Then the assessee reached out to a firm of senior chartered accountants in Rajkot to file the appeal against the order of CIT, consequence to order u/s 147 r.w.s. 144, for the assessment year 2010-11. Upon checking the e-filing portal, it was discovered that not only order of CIT(A), consequence to order u/s. 147 r.w.s. 144 for the assessment year 2010-11, had passed, but also an appellate order u/s. 250, consequence to penalty order u/s. 271(1)(b) had already been passed in the assessee's case for A.Y. 2010-11. The tax practitioner informed him that an ex-parte appellate order had been passed in his case. The tax practitioner then advised the assessee to file an appeal with prayer for condonation of delay hence, delay in filing the appeal has occurred. The ld. Counsel for the assessee stated that the said delay is unintentional, and it happened as the assessee was unaware about such remedies against the CIT(A)`s order and the time limit to avail the same as because the same was I.T.A Nos 35 & 49/Rjt/2024 A.Y. 2010-11 Kalpeshbhai Naranbhai Rajpara vs. ITO 3 not informed to by the previous tax consultant. Therefore, delay in filing the appeal may be condoned. 3. On the other hand, ld. D.R. for the Revenue submitted that the assessee has failed to explain sufficient cause and the facts narrated in the affidavit is a cooked story, as the assessee has not filed the cogent evidence for such delay of 219 days. Since, the assessee has not explained the sufficient cause, so delay should not be condoned. 4. I have heard both the parties, on this preliminary issue. I find that delay in filing the appeal for 219 days has mainly occurred because of the mistake, committed by the Tax Practitioners of the assessee. Since the Tax Practitioner has committed the mistake, the assessee should not be penalized. Therefore, considering these facts, the pragmatic and liberal approach should be adopted for condonation of delay. I note that Hon'ble Gujarat High Court has considered this aspect of condonation of delay in case of Gujarat State Fertilizers & Chemicals Ltd. (283 ITR 149) and held that: "The position in law is well settled that an assessee should be granted the relief where it is due without standing on technicalities and the revenue must bear the established legal position in mind while dealing with applications seeking condonation of delay. It is necessary that liberal approach is adopted in such a matter so as to ensure that substantive rights are not defeated on the basis of technicalities or limitation" 5. I note that the reasons given in the affidavit for condonation of delay were convincing and these reasons would constitute reasonable and sufficient cause for the delay in filing this appeal. Having heard both the parties and after having gone through the affidavit as well the delay condonation, application, I am of the considered opinion that in the interest I.T.A Nos 35 & 49/Rjt/2024 A.Y. 2010-11 Kalpeshbhai Naranbhai Rajpara vs. ITO 4 of justice, the delay deserves to be condoned. I, accordingly, condone the delay. 6. On merit, the ld. Counsel for the assessee, submitted that both the appeals pertain to same assessee. The assessee’s appeal in ITA No. 35/Rjt/2024 pertains to quantum proceedings, wherein the assessing officer framed the assessment order u/s 144 of the Act, as the assessee did not appear during the assessment proceedings. In assessee’s appeal in ITA No. 49/Rjt/2024, the assessing officer passed the penalty order u/s. 271(1)(b) of the Act because there was a non-compliance of notices during the assessment proceedings. Now, the assessee is ready to submit the relevant details/documents before the assessing officer. Therefore, the ld. Counsel for the assessee contended that in both the cases, there were non-compliance, on the part of the assessee, before the assessing officer, during the assessment proceedings, therefore, it would be better to remit these two appeals, to the file of the assessing officer for fresh adjudication. 7. On the other hand, the ld. D.R. for the Revenue submitted that assessee did not appear during the assessment proceedings, as well as proceedings before Ld. CIT(A), despite of giving several opportunities of hearing, therefore, these two appeals of the assessee may be dismissed. 8. I have heard both the parties and perused the materials available on record. I noted that it is an admitted fact that the assessee did not appear I.T.A Nos 35 & 49/Rjt/2024 A.Y. 2010-11 Kalpeshbhai Naranbhai Rajpara vs. ITO 5 before the assessing officer as well as before the ld. CIT(A). The ld. Counsel for the assessee explained reasons stating that there was a dispute between the assessee and the old tax consultant and therefore, the old tax consultant did not inform the assessee about the status before the ld. CIT(A) and the proceedings before the ld. CIT(A). The notices were served on the old Tax Consultant and because of the dispute between the assessee and the old Tax Consultant, regarding payment of fee, the old Tax Consultant did not co-operate the assessee during the appellate proceedings and did not attend hearings before the ld. CIT(A). Therefore, I note that because of the mistake committed by the Tax Consultant of the assessee, the assessee should not be penalized. I also note that there is non-compliance during the assessment proceedings, however, now the assessee, undertakes the responsibility to appear before the assessing officer and to file the relevant documents and evidences before the assessing officer, therefore, I am of the view that one more opportunity should be granted to the assessee to plead both the cases before the assessing officer. 9. Hence, I am of the view that both the matters should be remitted back to the file of assessing officer for fresh adjudication. Therefore, I set aside the order of the ld. CIT(A) and remit the issue back to the file of assessing officer for fresh adjudication. I also direct the assessee to submit the relevant documents and details before the assessing officer, as and when required, by the assessing officer and co-operate during the assessment proceedings for disposal of these appeals. Hence, both these appeals are treated to be allowed for statistical purposes. I.T.A Nos 35 & 49/Rjt/2024 A.Y. 2010-11 Kalpeshbhai Naranbhai Rajpara vs. ITO 6 10. In the result, appeals filed by the assessee in ITA Nos. 35/Rjt/2024 and 49/Rjt/2024, are allowed for statistical purposes. Order pronounced in the open court on 16-07-2024 Sd/- (A. L. SAINI) ACCOUNTANT MEMBER Rajkot Dated: 16/07/2024 आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Rajkot 6. Guard file. By order/आदेश से, Assistant Registrar ITAT, Rajkot