Minesh Harivadan Shah, Ahmedabad V. ITO, Ward-5(3)(1), Ahmedabad

ITA 556/AHD/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2575 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 03-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained expenditure; Opportunity of being heard; Principle of natural justice; Set aside
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT AT AHMEDABAD) BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ ITA NO. 556/AHD/2019 / ASSTT. YEAR: 2015-16 MINESH HARIVADAN SHAH, 4, VARDAYINI FLATS, FATEHPURA, PALDI, AHMEDABAD-38007. PAN: AFXPS5625R VS. I.T.O, WARD-5(3)(1), AHMEDABAD. (APPLICANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI R.R. MAKWANA, SR.D.R /DATE OF HEARING : 06/10/2021 /DATE OF PRONOUNCEMENT: 13/10/2021 /O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-5, AHMEDABAD, DATED 27/02/2019 ARISING IN THE MATTER OF ASSESSMENT ORDER PASSED UNDER S. 143(3) OF THE INCOME TAX ACT, 1961 (HERE-IN-AFTER REFERRED TO AS 'THE ACT') RELEVANT TO THE ASSESSMENT YEAR 2015-16. ITA NO.556/AHD/2019 A.Y. 2015-16 2 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1.1 THE ORDER PASSED U/S.250 ON 27.02,2019 FOR A.Y.2015-16 BY CIT(A)- 5, ABAD DISMISSING THE APPEAL ON THE PRELIMINARY GROUND OF LIMITATION IS WHOLLY ILLEGAL, UNLAWFUL AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 1.2 THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND OR ON FACTS IN REJECTING THE EXPLANATION GIVEN BY THE APPELLANT WITH REGARD TO THE DELAY IN PREFERRING THE APPEAL. 1.3 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD.CLT(A) OUGHT NOT TO HAVE REJECTED EXPLANATION GIVEN BY THE APPELLANT WITH REGARD TO THE DELAY IN PREFERRING THE APPEAL OR IN THE ALTERNATIVE, THE LD. CIT(A) OUGHT TO HAVE ALLOWED A REASONABLE OPPORTUNITY TO THE APPELLANT TO PRODUCE EVIDENCE WITH REGARD TO THE DELAY. THE APPELLANT STATES THAT AS MENTIONED IN THE APPEAL MEMO THE CIT(A) HAS NEITHER GIVEN ANY OPPORTUNITY BEFORE REJECTING THE EXPLANATION OR ASKING FOR FURTHER EVIDENCE IN THIS REGARDS. 1.4 THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. CIT(A) OUGHT TO HAVE HELD THAT THERE WAS SUFFICIENT CAUSE FOR DELAY IN PREFERRING APPEAL TO CIT(A). 2.1 THE LD.CIT(A) HAS ERRED IN UPHOLDING THE ADDITION OF RS.45,43,297/- AS UNEXPLAINED EXPENDITURE TOWARDS CUSTOM DUTY. IT IS THEREFORE, PRAYED THAT THE DELAY IN FILING APPEAL TO CIT(A) MAY PLEASE BE CONDONED AND THE ORDER PASSED BY CIT(A) MAY PLEASE BE SET ASIDE. 3. WHEN THE MATTER WAS CALLED FOR HEARING, THERE WAS NOBODY APPEARED ON BEHALF OF THE ASSESSEE. HOWEVER, WE FIND THAT THE APPEAL FILED BY THE ASSESSEE BEFORE THE LD. CIT(A) WAS REJECTED ON THE REASONING THAT THERE WAS A DELAY IN FILING THE APPEAL FOR FIVE MONTHS AND NO REASONABLE JUSTIFICATION WAS FOR SUCH DELAY WAS FURNISHED BY THE ASSESSEE. THUS, THE ISSUE RAISED BY THE ASSESSEE WAS NOT ADJUDICATED BY THE LD. CIT(A) ON MERIT. CONSIDERING THE DISPUTE INVOLVED IN THE CASE ON HAND, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE DEEMED IT FIT TO HEAR THE CASE EX-PARTY TO THE ASSESSEE. 4. THE LD. DR DID NOT RAISE ANY OBJECTION IF THE APPEAL IS HEARD EX-PARTY TO THE ASSESSEE. HENCE, WE PROCEED TO DECIDE THE ISSUE EX-PARTY QUA THE ASSESSEE. ITA NO.556/AHD/2019 A.Y. 2015-16 3 5. AT THE OUTSET WE NOTE THAT THE APPEAL FILED BY THE ASSESSEE BEFORE THE LD. CIT(A) WAS NOT ADMITTED ON THE REASONING THAT THERE WAS A DELAY IN FILING THE APPEAL FOR FIVE MONTHS. AS PER THE LD. CIT(A), THE ASSESSEE FAILED TO JUSTIFY THE DELAY IN FILING THE APPEAL BASED ON COGENT MATERIAL. THEREFORE, THE DELAY WAS NOT CONDONED BY THE LD. CIT(A) AND APPEAL FILED BY THE ASSESSEE WAS CONSEQUENTLY DISMISSED. 6. ON PERUSAL OF THE STATEMENT OF FACTS AND PAPER BOOK FILED BY THE ASSESSEE WE FIND THAT SHRI KAMLESH V. SHAH, WAS HANDLING THE INCOME TAX MATTER OF THE ASSESSEE. SHRI KAMLESH V. SHAH, IS A QUALIFIED CHARTERED ACCOUNTANT (FOR SHORT CONSULTANT). THERE WAS A MARRIAGE OF THE SON OF THE CONSULTANT OF THE ASSESSEE DATED 01/02/2018 AS EVIDENT FROM THE INVITATION CARD OF THE MARRIAGE PLACED ON PAGE 53 TO 54 OF THE PAPER BOOK. 7. BESIDES THIS, THERE WAS AN AFFIDAVIT OF THE STAFF OF THE CONSULTANT, WHICH IS AVAILABLE ON RECORD DATED 16/12/2019, WHEREIN IT WAS ADMITTED THAT SHE FORGOTTEN TO HAND OVER THE ASSESSMENT ORDER TO THE ASSESSEE. THE REASON FOR NOT HANDING OVER THE ASSESSMENT ORDER WAS EXPLAINED THAT SHRI KAMLESH V. SHAH, WAS VERY MUCH OCCUPIED IN THE WEDDING CEREMONY OF HIS SON. THUS, HE WAS NOT ATTENDING HIS OFFICE REGULARLY. 8. FROM THE ORDER OF THE LD. CIT(A), WE FIND THAT ALL THESE FACTS HAVE NOT BEEN CONSIDERED WHILE DISMISSING THE APPEAL FILED BY ASSESSEE ON ACCOUNT OF DELAY. NEVERTHELESS, IN THE INTEREST OF JUSTICE AND FAIR PLAY WE ARE INCLINED TO EXTEND ONE MORE OPPORTUNITY TO THE ASSESSEE TO PRESENT HIS CASE BEFORE THE LD. CIT(A). ACCORDINGLY, WE SET-ASIDE THE APPEAL TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW AND AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT IS NOT OUT OF PLACE TO MENTION THAT THE ASSESSEE SHALL EXTEND FULL ITA NO.556/AHD/2019 A.Y. 2015-16 4 COOPERATION BEFORE THE APPELLATE AUTHORITY. HENCE, THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 13/10/2021 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) (WASEEM AHMED) VICE PRESIDENT ACCOUNTANT MEMBER (TRUE COPY) AHMEDABAD; DATED 13/10/2021 MANISH