Vijaybhai Mansukhbhai Patel, Surat V. Income Tax Officer, Ward 1, Surat

ITA 453/SRT/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 4913 (ITAT-SURAT)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 14-07-2024
• Assessment Year: 2017-2018
• Appeal Filed On: 16-04-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reasonable cause
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI BIJAYANANDA PRUSETH, ACCOUNTANT MEMBER ITA No. 453/Srt/2024 (Assessment Year 2017-18) (Hybrid hearing) Vijaybhai Mansukhbhai Patel, Kumbharwada, Kanpura, At Post, Vyara Dsit, Tapi, Gujarat-394650. PAN No. AHTPP 6606 R Vs. I.T.O., Ward-1, Surat. Appellant/ assessee Respondent/ revenue Assessee represented by Ms. Chaitali Shah, CA Department represented by Shri Ravi Kant Gupta, CIT-DR with Shri Vinod Kumar, Sr. DR Date of Institution of Appeal 18/04/2024 Date of hearing 15/07/2024 Date of pronouncement 14/08/2024 Order under Section 254(1) of Income Tax Act PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the assessee is directed against the ex-parte order of learned National Faceless Appeal Centre, Delhi (NFAC)/Commissioner of Income Tax (Appeals) (in short, the ld. CIT(A)) dated 16/10/2023 for the Assessment Year (AY) 2017-18. 2. Rival submissions of both the parties have been heard and record perused. At the outset of hearing, the learned Authorised Representative (ld. AR) of the assessee submits that there is delay of 124 days in filing appeal before Tribunal. The assessee has filed application for condonation of delay. The ld. AR of the assessee stated that when the Assessing Officer (AO) passed assessment order, the assessee was under judicial custody. The assessee was arrested by police on 30.09.2021 and he remained in ITA No. 453/Srt/2024 Vijaybhai Mansukhbhai Patel Vs ITO 2 judicial custody till 18.05.2023. The AO passed assessment order on 23.03.2022 under section 144. While filing appeal before ld CIT(A), the assessee furnished e-mail address and phone number of his manager i.e. [e-mail] who left the job and not informed the assessee about the e-mail communication to the assessee. Later on, the assessee approached Mr Jignesh Shah CA for checking ITBA Portal and find that ld CIT(A) has passed ex-parte order for the want of compliance. The assessee came to know about passing of order by ld CIT(A) in April 2024 and filed appeal before Tribunal immediately. The delay in filing appeal is neither intentional nor deliberate but due to the bonafide reasons explained above. The ld. AR of the assessee submits that the assessee has good case on merit and is likely to succeed if one more opportunity is provided to him. The ld AR for the assessee submits that there is sufficient cause for condoning the delay. The ld AR of the assessee prayed to condone the delay. 3. On merit of the case, the ld. AR of the assessee submits that the appeal before the ld. CIT(A) was filed in 2020, however, as per order of ld. CIT(A), only two notices were issued for making compliance. No fair and reasonable opportunity was given to the assessee by the ld. CIT(A). The assessee has good case on merit and is likely to succeed if one more opportunity is provided to the assessee to contest the case on merit. The ld AR of the assessee submits that matter may be restored to the file of AO with the liberty to the assessee to contest all the issues on merit. ITA No. 453/Srt/2024 Vijaybhai Mansukhbhai Patel Vs ITO 3 4. On the other hand, the learned Commissioner of Income Tax- Departmental Representative (ld. CIT-DR) for the revenue submits that the assessee has not disclosed reasonable cause for condoning the delay in filing appeal. The assessee is relying on self-serving story. On merit, the ld. CIT-DR for the revenue submits that the assessee was given two opportunities as recorded by the ld. CIT(A). The assessee has not furnished any submission; therefore, the ld. CIT(A) has no option except to decide the appeal on the basis of material available on record. In case, the Bench is convinced that the assessee was not allowed fair and reasonable opportunity, the matter may be restored to the file of Assessing Officer with the direction to assessee to be more vigilant in making compliance in time. 5. We have considered the submissions of both the parties and perused the material on record carefully and have also gone through the contents of application of condonation of delay. Before us, the ld AR of the assessee vehemently argued during assessment the assessee was under judicial custody, he was arrested by police on 30.09.2021 and he remained in judicial custody till 18.05.2023. The AO passed assessment order on 23.03.2022 under section 144. Further, at the time of filing appeal before ld CIT(A), the assessee furnished e-mail address and phone number of his manager i.e. [e-mail] who left the job and not informed the assessee about the e-mail communication to the assessee. And that came to know about passing of order by ld CIT(A) in April 2024, ITA No. 453/Srt/2024 Vijaybhai Mansukhbhai Patel Vs ITO 4 when he checked ITBA portal through other CA Jignesh Shah and filed appeal before Tribunal immediately. Such facts are not controverted by revenue. Thus, considering the facts of the case and the contents made in the condonation of delay, we find that the delay in filing appeal is not intentional nor deliberate, therefore, the delay in filing appeal is condoned. Now adverting to the merit of the case. 6. We find that the assessment was completed under section 144 on 29/12/2019 by making various additions in the assessment order. The ld. CIT(A) dismissed the appeal of assessee by holding that the assessee has given two opportunities to file written submission but the assessee failed to file their written submission. The ld. CIT(A) dismissed the appeal of assessee in limine. We find that the ld. CIT(A) has not given finding on merit. We further find that the appeal before the ld. CIT(A) was filed in January, 2020 and date of first hearing was fixed in the month of January, 2021 which was severe pandemic period. Further notice was issued only on 05/07/2023 for making compliance up to 17/07/2023. Though the impugned order was passed on 16/10/2023 but no further notice was issued to the assessee. In our view, no reasonable and fair opportunity was given to the assessee. In our view substantial rights of the assessees are involves in the present appeal, therefore, considering the fact and circumstances of the case and the interest of justice, the matter is restored back to the file of AO to pass the order afresh after giving reasonable and fair opportunity of hearing to the assessee. The assessee is also directed ITA No. 453/Srt/2024 Vijaybhai Mansukhbhai Patel Vs ITO 5 to be more vigilant in future and not to cause further delay by seeking adjournment without any valid reason and to furnish all the details and his submissions and evidences on various grounds of appeal raised, as soon as possible, if so desired without any further delay. In the result, the grounds of appeal raised by the assessee are allowed for statistical purposes. 7. In the result, this appeal of assessee is allowed for statistical purpose. Order announced in open court on 14 th August, 2024. Sd/- Sd/- (BIJAYANANDA PRUSETH) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat, Dated: 14/08/2024 *Ranjan Copy to: 1. Assessee – 2. Revenue – 3. CIT 4. DR By order 5. Guard File Sr. Private Secretary, ITAT, Surat