ATIQ AHMED KHAN, BHARUCH, GUJARAT V. ITO WARD 1(1), BHARUCH

ITA 524/SRT/2023

• Counselvise Citation: [2024] 130 COUNSELVISE.COM (IT) 4748 (ITAT-SURAT)
• Duration Of Justice: 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-03-2024
• Assessment Year: 2015-2016
• Appeal Filed On: 30-07-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VINOD KUMAR
• Assessee Lawyers: KRUTARTH DESAI
• Keywords: Condonation of delay; Set aside; Opportunity of being heard; Principle of natural justice
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM आयकर अपील सं./ITA No.524/SRT/2023 Assessment Year: (2015-16) (Physical Hearing) Atiq Ahmed Khan, B-25, 2nd Floor, N. G. Complex, Nr. Kasak Police Station, Bharuch – 392001. Vs. The ITO, Ward – 1(1), Bharuch èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AKNPK7274P (Appellant) (Respondent) Appellant by Shri Krutarth Desai, AR with Ms Disha Kharod, CA Respondent by Shri Vinod Kumar, Sr. DR Date of Hearing 12/03/2024 Date of Pronouncement 12/03/2024 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeal filed by the assessee, pertaining to Assessment Year (AY) 2015-16, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals), [in short “the ld. CIT(A)”], National Faceless Appeal Centre (in short ‘the NFAC’), Delhi, dated 03.05.2023, which in turn arises out of an assessment order passed by the Assessing Officer u/s 144 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), dated 26.12.2017. 2. The appeal filed by the assessee for AY.2015-16, is barred by limitation by 26 days. The assessee moved a petition, requesting the Bench to condone the delay. The Ld. Counsel for the assessee also filed an affidavit for condonation of delay. The Ld. Counsel for the assessee explained the reasons of delay stating that the assessee under Page | 2 ITA.524/SRT/2023/AY.2015-16 Atiq Ahmed Khan consideration was not in Gujarat when the appellate order was passed by the ld. CIT(A), the assessee went to his home town in the State of Uttar Pradesh. The tax consultant of the assessee was trying to get the login id of the Income Tax portal to get the copy of order of the ld. CIT(A) and in this process, the delay of 26 days has occurred. Therefore, such delay should be condoned in the interest of justice. 3. On the other hand, learned Senior Departmental Representative (ld. Sr. DR) for the Revenue submitted that delay should not be condoned on such flimsy reason as the assessee did not point out the sufficient cause for the delay, hence delay should not be condoned. 4. We have heard both the parties and on this preliminary issue. We note that the reasons given in the affidavit for condonation of delay are convincing and these reasons would constitute reasonable and sufficient cause in filing this appeal. Having heard both the parties and after having gone through the affidavit as well as the delay condonation application of assessee, we are of the considered opinion that in the interest of justice the delay deserves to be condoned. We, accordingly, condone the delay and admit the appeal of assessee for hearing on merit. 5. On merit, Ld. Counsel for the assessee submitted that during the appellate proceedings, the notices of hearing have not been received by the assessee. The notices of hearing were reached to the tax consultant of the assessee who was negligent and did not inform to the assessee, therefore during the appellate proceedings, the assessee could not appear before the ld. CIT(A) and could not file the relevant documents and evidences before the ld. CIT(A). The Ld. Counsel also submitted that order passed by the Assessing Officer is also an ex parte order Page | 3 ITA.524/SRT/2023/AY.2015-16 Atiq Ahmed Khan wherein the Assessing Officer could not examine the primary facts of the assessee’s case, therefore matter may be remitted back to the file of the Assessing Officer for fresh adjudication. 6. On the other hand, ld. Sr. DR for the Revenue submitted that assessee could not file the relevant documents and evidences before the ld. CIT(A), despite of giving enough opportunity to the assessee, therefore further innings should not be given to the assessee, hence appeal of the assessee should be dismissed. 7. We have heard both the parties. Considering the above facts, we note that assessee could not plead his case successfully before the ld. CIT(A). We also note that Ld. CIT(A) has not passed the order as per the mandate of provisions of section 250(6) of the Act. That is, ld. CIT(A) did not pass order on merit based on the material available on record. Besides, the assessment order framed by the Assessing Officer is under section 144 of the Act; hence Assessing Officer has not examined the basic facts of the assessee. Hence, we are of the view that one more opportunity should be given to the assessee to plead his case before the Assessing Officer. 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, without delving much deeper into the merits of the case, in the interest of justice, we restore the matter back to the file of Assessing Officer for de novo adjudication and pass a speaking order after affording sufficient opportunity of being heard to the assessee, who in turn, is also directed to contest his stand forthwith. 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 Assessing Officer to adjudicate the issue Page | 4 ITA.524/SRT/2023/AY.2015-16 Atiq Ahmed Khan afresh on merits. For statistical purposes, the appeal of the assessee is treated as allowed. 8. In the result, appeal filed by the assessee is allowed for statistical purposes. Order is pronounced on 12/03/2024 in the open court. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 12/03/2023 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat