Kuldip, Bulandshahr V. ITO WARD - 3(2), Bulandshahr

ITA 5437/DEL/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 8962 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 18-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Condonation of delay; Set aside
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: SMC-2 NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER [THROUGH VIDEO CONFERENCING] ITA NO.5437/DEL./2019 ASSESSMENT YEAR: 2009-10 SHRI KULDIP, VILL. & PO CHANDPUR, NEAR KRISH VIDYALAYA, BULANDSHAHAR VS. ITO, WARD-3(2), BULANDSHAHAR PAN :DTCPK2327C (APPELLANT) (RESPONDENT) ORDER PER O.P. KANT, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORD ER DATED 28/02/2019 PASSED BY THE LD. CIT (APPEALS)-GHAZIABA D [IN SHORT THE LD. CIT(A)] FOR ASSESSMENT YEAR 2009-10 RAISI NG FOLLOWING GROUNDS: 01. BECAUSE LD. AO ERRED IN COMPLETING ASSESSMENT U /S144/147 OF THE INCOME TAX ACT AS ASSESSEE IS NOT PROVIDED A RE ASONABLE OPPORTUNITY OF BEING HEARD. 02. BECAUSE LD. AO ERRED IN COMPUTING UNEXPLAINED C ASH DEPOSITS IN HIS SAVING BANK ACCOUNT AND ADDED IT TO THE INCOME OF THE ASSESSEE U/S 68 OF THE I.T. ACT, 1961 WHILE ASSESSE E DEPOSITED SUCH CASH IN HIS BANK FROM HIS JUSTIFIED SOURCES. APPELLANT BY NONE RESPONDENT BY SHRI S.S. NEGI, SR.DR DATE OF HEARING 11.01.2021 DATE OF PRONOUNCEMENT 11.01.2021 2 ITA NO.5437/DEL./2019 03. BECAUSE LD. AO IS NOT PROVIDED A PROPER OPPORTU NITY OF BEING HEARD FOR THE SAKE OF NATURAL JUSTICE. 04. BECAUSE LD. CIT (APPEAL) HAS ERRED IN CONFIRMIN G THE EX-PARTE ASSESSMENT ORDER PASSED BY THE AO WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE APPELLANT & SUCH ORDER WAS MA DE ARBITRARY WHILE THE DELAY IN FILLING APPEAL WAS DULY JUSTIFIE D WITH THE DOCUMENTRAIL EVIDENCES. 05. THE ASSESSEE CRAVES TO ADD/ALTER ANY OTHER GROU NDS OF THE APPEAL BEFORE AT THE TIME OF HEARING. 2. NONE REPRESENTED ON BEHALF OF THE ASSESSEE AND WE HAVE HEARD SUBMISSION OF THE LEARNED DR THROUGH VIDEO CO NFERENCING FACILITY. 3. ON PERUSAL OF THE IMPUGNED ORDER, WE FIND THAT APPE AL OF THE ASSESSEE HAS BEEN DISMISSED IN LIMINE BY THE LD CIT (A) IN VIEW OF THE DELAY OF 242 DAYS IN FILING THE APPEAL OBSERVIN G AS UNDER: 2.1 EXAMINATION OF FACTS REVEALS THAT THE NOTICE O F DEMAND WAS SERVED ON 17.11.2016. ADMITTEDLY THERE IS A DELAY OF 242 DAYS AND APPEAL WAS TO BE FILED ONLY DURING DECEMBER 2016. THE APPELLANT HAS TAKEN CERTIFIED COPIES ON 07.07.2017 WHEREAS APPELLANT WAS RELEASED FROM JAIL ON 03.04.2017. THUS APPELLANT HAD SUFFICIENT TIME FROM APRIL 2017 TO JU LY 2017 TO FILE THE APPEAL. THUS THERE IS UNJUSTIFIABLE DELAY IN FILING THE APPEAL. IT IS FELT THAT APPELLANT HAS NOT ACTED WITH REASONABLE DILIGENCE IN PROSECUTING THE APPEAL. CONDONATION OF DELAY IS NOT A MATTER OF RIGHT SINCE APPELLANT HAS FAILED TO SHOW REASONS OF DELAY ON LAST DAY OF LIMITATION AND THEREAFTER FOR EACH DAY. RELI ANCE IN THIS REGARD IS- PLACED ON DECISION IN THE CASE OF RANKAK & ORS, VS REWA COALF IELDS LTD. AIR 1962 SC 361, JCIT VS TRACTORS & FARM EQUIPMENTS LTD. (ITAT, CHEN NAI-TM) 104 ITD 149, MADHU DADHA VS ACIT (MAD) 317 ITR 458. CONSIDERING ABOVE FACTS AND CIRCUMSTANCES THIS APPEAL PREFERRED BY THE APPEAL I S TREATED AS NON-EST BEING DEFECTIVE. 4. WE HAVE NOTICED UNDISPUTED FACT THAT THE ASSESSEE WAS IN JAIL DURING THE PERIOD FROM 06/10/2016 TO 03/04/201 7 IN RELATION TO SOME CRIMINAL PROCEEDING AGAINST HIM. T HE LIMITATION FOR FILING THIS APPEAL EXPIRED IN DECEMBER, 2016. A S NOTED BY THE LEARNED CIT(A), THE ASSESSEE TOOK CERTIFIED COPIES ON 07/07/2017 AND THEREAFTER FILED THE APPEAL WITH THE REQUEST TO CONDONE THE DELAY IN FILING THE APPEAL. IN THE OPINION OF THE L EARNED CIT(A), 3 ITA NO.5437/DEL./2019 THERE WAS UNJUSTIFIED DELAY IN FILING THE APPEAL. H OWEVER, WE DO NOT AGREE WITH THE ABOVE FINDING OF THE LEARNED CIT (A). THE ASSESSEE WAS RELEASED FROM JAIL IN THE MONTH OF APR IL, 2017 AND HE HAS OBTAINED THE CERTIFIED COPIES AND FILED THE APPEAL IN THE MONTH OF JULY, 2017. IN OUR OPINION, THE PERIOD OF THREE MONTHS IN SETTLING STATE OF MIND AFTER JAIL FOR TAKING A S TOCK OF OTHER PROCEEDINGS INCLUDING APPELLATE PROCEEDINGS IN THE PRESENT CASE, IS NOT UNREASONABLE AND CANNOT BE TERMED AS UNJUSTI FIED DELAY. ACCORDINGLY, WE CONDONE THE DELAY IN FILING THE APP EAL BEFORE THE CIT(A). THUS, WE SET ASIDE THE FINDING OF THE LEARN ED CIT(A) AND DIRECT HIM TO ADMIT THE APPEAL AND PASS A REASONED ORDER ON MERIT IN ACCORDANCE WITH LAW AFTER PROVIDING ADEQUA TE OPPORTUNITY OF BEING HEARD. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (BHAVNESH SAINI) (O.P. KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 11 TH JANUARY, 2021. RK/- (D.T.D.S.) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI