Shri Vijaybhai Parmanandbhai Sorthiya , Amreli V. The ITO Ward-3 (1) (1), Rajkot

ITA 439/RJT/2023

• Counselvise Citation: [2024] 130 COUNSELVISE.COM (IT) 4539 (ITAT-RAJKOT)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 03-09-2024
• Assessment Year: 2013-2014
• Appeal Filed On: 18-12-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHIMANYU SINGH YADAV
• Assessee Lawyers: BRIJESH PATEL; CHETAN AGARWAL
• Section: 148; 144; 250; 205

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT BEFORE DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER AND SHRI DINESH MOHAN SINHA, JUDICIAL MEMBER आयकर अपील सं./ITA No. 439/RJT/2023 (Assessment Year: 2013-14) Vijaybhai Parmanandbhai Sorathiya, Amarap ara Bab ra, Babra Amreli Gujarat-365421 Vs. Income Tax Officer, Ward-3(1)(1), Rajkot थायीलेखासं./जीआइआरसं./PAN/GIR No.: DTUPS6334B (अपीलाथ /Appellant) ( यथ /Respondent) नधा रतीक ओरसे / Assessee by : Shri Brijesh Patel & Shri Chetan Agarwal, A.Rs. राज वक ओरसे/Revenue by : Shri Abhimanyu Singh Yadav, Sr. D.R. स ु नवाईक तार ख/ Date of Hearing : 04/09/2024 घोषणाक तार ख/Date of Pronouncement : 05/09/2024 आदेश/ORDER PER DINESH MOHAN SINHA, JM: Captioned appeal has been filed by the Assessee for A.Y. 2013-14, is directed against the order passed by the Learned Commissioner of Income Tax Appeals (in short “Ld. CIT(A)”), National Faceless Appeal Centre (in short “NFAC”), Delhi dated 29.03.2023 under section 250 of the Income Tax Act, 1961 (in short, ‘the Act’). 2. The grounds of appeal filed by the assessee are reproduced below: “1. The re-open proceedings are bad in law and may kindly be held as such. 2. The Ld.AO erred in law and on facts in making the addition of Rs.2900000/-, and the CIT (A) erred in upholding the addition. On the facts and I.T.A No. 439 /Rjt/2023 A.Y. 2013-14 2 the circumstances of the case, it is submitted that no addition deserves to be made. 3. The grounds on the basis of which the addition of Rs2900000 has been made are factually incorrect and legally untenable. 4. Your appellant craves leave to add, alter or amend any of the grounds stated here above.” 3. At the outset the assessee has filed the appeal before this Tribunal delayed by 205 days. The assessee has filed an application for condonation of delay stating reason that Mahesh K Tankoliya is looking after tax matters etc. who is not well-versed with the provisions of Income Tax Act, however, he managed to get the appeal filed with the Ld. CIT(A), this appeal has been dismissed. Mahesh K Tankoliya who had got the appeal filed did not / could not respond to the notices in the appeal proceedings. This order of appeal of the Ld.CIT(A) is dated 29.03.2023 passed by the National Faceless Appeal Centre, Delhi. The order passed was lying with accountant who does not know the next step, with the help of present Counsel. The applicant has filed a second appeal before the Hon’ble ITAT, Rajkot Bench, Rajkot on 19.12.2023. It is respectfully submitted that the applicant is an uneducated person, is of a lower middle class family and comes from a very poor background and financially as well as educationally. Even Mahesh K Tankoliya is also an ordinary accountant having petty accounts in the moffusil town of Botad and is not at all experienced with the procedure of Income Tax Laws. It is under these circumstances that the appeal has been filed belatedly and given the above circumstances it is prayed that the same may kindly be condoned. The assessee has supported these reasons filed by an affidavit of the accountant Maheshbhai Kaniyalal Tankoliya. The assessee submitted an Affidavit which is reproduced as under: 1. I know Shri Vijaybhai Parmanandbhai Sorathiya residing at Village Amrapur, Babra. I work as a part time accountant from my home at Botad. I have filed appeal before National Faceless Appeal Centre for A.Y. 2013-14 of Shri Vijaybhai. Thereafter, I.T.A No. 439 /Rjt/2023 A.Y. 2013-14 3 various notices received from NFAC, since, I have no adequate knowledge of making submission I had not replied the said notices. The CIT(A), NFAC has passed an order on 29.03.2023 which was laying with me, since, I have no adequate knowledge, I do not know what further action has to be taken. 2. In Dec-2023, Vijaybhai Sorithiya meet me and inquire about appeal to which I have handed over order of CIT(A) for further action at his end. The delay in filing appeal before the Hon’ble ITAT was caused due to my inaction and lack of knowledge. 4. The A.R. of the assessee has submitted the delay is due to wrong advice of the accountant who himself filed an affidavit and acknowledged his weakness. The delay is not due to the negligence on the part of the assessee. It is requested that the delay my kindly be condoned and appeal may kindly be heard on merits. 5. On the other hand, the Ld. D.R. submitted that assessee has not proved sufficient cause, hence, delay should not be condoned. 6. We have heard both the parties and perused the material available on record. We note that the delay in filing of the appeal before this Tribunal was due to the lack of knowledge of one accountant of the assessee who was looking after the tax matters. The accountant has filed an affidavit stating about the limitation of lack of knowledge because of this reasons the assessee should not be denied an opportunity to explain the case before the Authority. We find there is sufficient reason to condone the delay and therefore, we condone the delay of 205 days and admit the appeal for hearing on merit. 7. The brief facts of the case are that the assessee is a non-filer of the return. The assessee has deposited Rs. 29,00,000/- cash in the bank account. The case was reopened under Section 148 of the Act. The A.O. has given several opportunities to the assessee for explaining his case. The assessee has not filed return in respect of notice u/s. 148 of the Act. The A.O. has completed the assessment as ex-parte under Section 144 of the Act on 28.12.2017. I.T.A No. 439 /Rjt/2023 A.Y. 2013-14 4 8. The assessee filed appeal before the CIT(A). The Ld. CIT(A) has issued three notices dated 19.06.2018, 29.12.2020 and 13.03.2023 to the assessee and all remain uncomplied with the assessee. The assessee has given sufficient opportunity to represent the case but the appellant did not appear and avail the opportunity to join the appellate proceedings. The Ld. CIT(A) further observed that Hon’ble Delhi High Court have observed in the case of CIT vs. Gold Leaf Capital Ltd. (ITA No. 798 of 2009) holding that negligent appellant should not be given many opportunities just because the quantum of amount involved is high. In view of this, the action of the AO is sustained and the grounds of appeal raised by the appellant are accordingly dismissed. 9. The assessee is in appeal before us. The A.R. submitted before us is this that because of one reason or the other reason the assessee could not get due opportunity to appear before the authority and requested for that an opportunity should be given to explain the case before the lower authority. 10. On the contrary, the Ld. D.R. has submitted that three opportunities were given to the assessee by Ld. CIT(A) but assessee did not respond to the notice and several opportunities were also given by Ld. A.O. to the assessee for hearing of the case that the D.R. has relied on the order of the CIT(A) and asked the Bench to impose penalty. 11. We have heard both the parties and perused the material available on record. 12. It is noted that the notices issued by the Ld. CIT(A) for hearing of the case but the order is silent on service of notice for the assessee. It was further noted that the Ld. A.O. has issued noticed for hearing but the assessee appeared only on 21.12.2017 and in response to notice. Thereafter, no notice has been issued to the I.T.A No. 439 /Rjt/2023 A.Y. 2013-14 5 assessee by the AO. It was further noted that the assessee is a farmer and all income is from agriculture, never filed the return of income, hence, not well- versed with tax laws. Therefore, we are of the view that one more opportunity should be given to the assessee to present his case before the lower authority and hence, we set-aside the order of CIT(A) and remand the matter back to the file of the Ld. A.O. for fresh adjudication on merits, after giving an opportunity to be heard and the assessee is further directed to file all required documents in supported of claim before Assessing Officer. 13. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 05-09-2024 Sd/- Sd/- (Dr. A. L. SAINI) (DINESH MOHAN SINHA) ACCOUNTANT MEMBER JUDICIAL MEMBER Rajkot Dated: 05/09/2024 TRUE COPY आदेश क त ल प अ े षत / 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/Sr. P.S./P.S. ITAT, Rajkot