Shri Golanbhai Nazabhai Sabhad, At: - Khajuri Gundala, Taluka: - Jetpur, Dist.: - Rajkot V. The ITO Ward- 1 (2) (3), Rajkot, Rajkot

ITA 446/RJT/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 5779 (ITAT-RAJKOT)
• Duration Of Justice: 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2017-2018
• Appeal Filed On: 25-12-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHISH KUMAR PANDEY
• Assessee Lawyers: SULEMAN GUNGA
• Keywords: Principle of natural justice; Reasonable cause; Condonation of delay; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, “SMC” RAJKOT BENCH, RAJKOT BEFORE DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER आयकर अपील सं./ITA No.446/RJT/2023 (Assessment Year: 2017-18) (Hybrid Hearing) Golanbhai Nazabhai Sabhad, At: Khajuri Gundala, TA- Jetpur, Dist: Rajkot Rajkot-360370 Vs. The ITO, Ward-1(2), Rajkot èथायीलेखासं./जीआइआरसं./PAN/GIR No.: CBFPS7177C (अपीलाथȸ/Appellant) (Ĥ×यथȸ/Respondent) Ǔनधा[ǐरतीकȧओरसे/Assessee by : Shri Suleman Gunga, 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 appeal filed by the Assessee, pertaining to assessment year (A.Y.) 2017-18, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals), (National Faceless Appeal Centre, Delhi), which in turn arises, out of an assessment order passed by Assessing Officer u/s 143(3) of the Income Tax Act, 1961 (in short, ‘the Act’) vide order dated 29-11-2019. 2. The appeal filed by the assessee for assessment year 2017-18, is barred by limitation by 155 days. The assessee moved an application for condonation of delay requesting the Bench to condone the delay. I.T.A No. 446/Rjt/2023 A.Y. 2017-18 Shri Golanbhai Nazabhai Sabhad vs. ITO 2 3. The ld. Counsel for the assessee, submitted that the assessee was not conversant with the internet/email and always depends on his legal advisor. The legal advisor of the assessee has not informed the assessee, about the disposal of the appeal of the assessee, by the ld. CIT(A). The ld. Counsel for the assessee also submitted that the email id of the legal advisor of the assessee and the mobile number of the legal advisor of the assessee, both were registered with the e-filing portal of the Department and the legal advisor did not inform the assessee about passing ex-parte order by the ld. CIT(A). In fact, the legal advisor of the assessee did not inform the assessee about the service of notice, during the appellate proceedings, by ld. CIT(A). Therefore, the ld. CIT(A) has passed an ex-parte order. Hence, the ld. Counsel for the assessee contended that because of these reasons, the delay of 155 days in filing the appeal has occurred which may kindly be condoned. 4. On the other hand, ld. D.R. for the Revenue submitted that the assessee has failed to explain sufficient cause. The reasons mentioned in the affidavit for condonation of delay, are story made by the assessee himself, therefore, delay should not be condoned. 5. I have heard both the parties on this preliminary issue and noted that the reasons given in the petition for condonation of delay are convincing and these reasons constitute a reasonable cause to condone the delay. As the assessee has explained that due to mistake committed by the legal advisor of the assessee, the assessee could not attend hearing during the appellate proceedings, before ld. CIT(A) and not only that the legal advisor did not inform the assessee about the notices issued, during the appellate I.T.A No. 446/Rjt/2023 A.Y. 2017-18 Shri Golanbhai Nazabhai Sabhad vs. ITO 3 proceedings and about passing the ex-parte order by the ld. CIT(A), therefore, delay of 155 days has occurred in filing the appeal before this Tribunal. I note that the assessee should not be penalized because of the mistake committed by his legal advisor. 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 of justice, the delay deserves to be condoned. I, accordingly, condone the delay and admit the appeal of the assessee for hearing. 6. On merit, the ld. Counsel for the assessee submitted that the assessee could not appear during the appellate proceedings due to non-service of notice, as all the notices, during the appellate proceedings were served on the legal advisor of the assessee, who in turn did not inform the assessee and therefore the ld. CIT(A) has passed the ex-parte order. The ld. Counsel for the assessee also contended that ld. CIT(A) did not express his opinion on the merits of the case as per the mandate of the provisions of section 250(6) of the Act. The ld. Counsel stated that now the assessee is ready to submit details and documents and explanations before the ld. CIT(A), hence the matter may be remanded back to the file of ld. CIT(A) for fresh adjudication. 7. On the other hand, ld. D.R. for the Revenue submitted that during the appellate proceedings, ld. CIT(A) has provided five opportunities of hearing, despite all these, the assesseee did not appear before the CIT(A) and did not file details and documents before ld. CIT(A), hence, assessee’s appeal may be dismissed. I.T.A No. 446/Rjt/2023 A.Y. 2017-18 Shri Golanbhai Nazabhai Sabhad vs. ITO 4 8. I have heard both the parties and perused the materials available on record. I note that during the appellate proceedings, the assessee could not receive the notices of hearing and therefore ld. CIT(A) has passed the ex- parte order. During the appellate proceedings, the legal advisor of the assessee did not inform the assessee about the service of notice by the ld. CIT(A), therefore, assessee could not plead his case successfully before the Ld. CIT(A). I also note that the ld. CIT(A) did not pass the order as per mandate of the provisions of section 250(6) of the Act i.e. ld. CIT(A) did not pass the order based on the materials available on record. 8.1 I 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, I 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. For statistical purposes, the appeal of the assessee is treated as allowed. 9. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 16-07-2024 Sd/- (A. L. SAINI) ACCOUNTANT MEMBER I.T.A No. 446/Rjt/2023 A.Y. 2017-18 Shri Golanbhai Nazabhai Sabhad vs. ITO 5 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