Dharmesh Bipinchandra Ghadiali, Surat V. Income Tax Officer, Ward-1(3)(6), Surat

ITA 69/SRT/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 8120 (ITAT-SURAT)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-03-2024
• Assessment Year: 2008-2009
• Appeal Filed On: 18-01-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reasonable cause; Condonation of delay
• Section: 148; 143(3)

Judgement Text

आयकर अपीलीय अिधकरण, सुरत Ɋायपीठ, सुरत IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND Dr ARJUN LAL SAINI, ACCOUNTANT MEMBER आ.अ.सं./ITA No.69/SRT/2024 (AY 2008-09) (Hybrid Hearing) Dharmesh Bipinchandra Ghadiali 103, Vastu Residency, Honey Park Road, Adajan, Surat -395009 PAN : ABHPG 3578 K Vs Income Tax Officer, Ward-1(3)(6), Surat Ayakar Bhawan, Near Majura Gate, Opp. New Civil Hospital, Surat- 390001 अपीलाथŎ/Appellant ŮȑथŎ /Respondent िनधाŊįरती की ओर से /Assessee by Shri P.M. Jagasheth, CA राजˢ की ओर से /Revenue by Shri Vinod Kumar, Sr-DR अपील पंजीकरण/Appeal instituted on 19.01.2024 सुनवाई की तारीख/Date of hearing 26.03.2024 उद्घोषणा की तारीख/Date of pronouncement 26.03.2024 Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by assessee is directed against the order of National Faceless Appeal Centre, Delhi [for short to as ‘NFAC/Ld. PCIT’] dated 20.11.2023 for assessment year 2008-09, which in turn arises out of assessment order passed Assessing Officer passed assessment order under section 143(3) r.w.s. 147 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) dated 31.03.2016. The assessee has raised the following grounds of appeal:- “1. On the facts and in the circumstances of the case as well as the law on the subject, the learned Assessing Officer has erred in re- opening the assessment and issuing notice u/s 148 of the Act without appreciating facts and legal aspects of the case. ITA No.69/SRT/2024 (A.Y 08-09) Dharmesh B Ghadiali 2 2. On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has erred in confirming the action of the Assessing Officer in making addition of Rs.2,20,00,581/- on account of disallowance of purchases of Rs.1,77,72,493/- from M/s Karishma Diamond Pvt. Ltd. and M/s Pareshwanath Gems Pvt. Ltd. and Rs.42,28,088/- loans received from M/s Krishna Diam Pvt. Ltd. 3. On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has not offered adequate opportunities to hear the case and passed ex-parte order and hence the case may please be set aside and restored back to the CIT(A) or AO. 4. It is therefore prayed that the above addition may please be deleted as learned Members of the Tribunal may deem it proper. 5. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of the hearing of the appeal.” 2. Rival submission of both the parties heard and record perused. The Ld. Authorized Representative (Ld.AR) of the assessee submits that Ld. CIT(A) passed ex parte order without giving fair and reasonable opportunities of being heard to assessee. The Ld. CIT(A) has dismissed the appeal as unadmitted by taking view that appeal of assessee is delay of 160 days in filing appeal before him. The Ld. AR for the assessee submits that copy of assessment order was not received by assessee due to change of address of assessee, the evidence showing shirting address is filed on record. At the time of filing return of income, the assessee was residing at the address mentioned in the assessment order. However, later on assessee shifted at Flat No.103, Vastu Residency, Opp. Sitaram Nagar, Hunny Park Road, Surat, copy of Surat Municipal Corporation is placed on record. The assessee came to know about assessment order when the Assessing Officer initiated ITA No.69/SRT/2024 (A.Y 08-09) Dharmesh B Ghadiali 3 recovery proceedings. The assessee immediately obtained copy of assessment order and filed appeal before Ld.CIT(A). There was sufficient and reasonable cause for condoning delay. However, the Ld.CIT(A) instead of taking liberal and lenient view in condoning the delay, dismissed the appeal of assessee as unadmitted. The Ld. AR for the assessee submits that assessee has a good case on merit and is likely to succeeds, if one more opportunity is given to assessee to contest his case on merit. The Ld. AR for the assessee made a specific submission that matter may be restored back to the file of Assessing Officer. 3. On merit, the ld AR for the assesse submits that the assessing officer made addition on account of alleged bogus received /bills allegedly availed from Gautam Jain & associates, who according to Department is engaged in providing accommodation entries of sale and purchase and loans. The Assessing Office has made addition of 100% on alleged receipt/purchase bills transactions with entities allegedly managed by Gautam Jain group. The Ld. AR for the assessee submits that assessee would like to file certain evidence before lower authorities in case, to substantiate the transactions, therefore, the matter be restored back to the file of assessing officer instead of ld. CIT(A) to avoid the long drawn process of remand report in the faceless regime. Assessing Office who will be in a better position to appreciate the evidence and all the facts in a proper way. 4. On the other hand, Ld. Sr-DR for the Revenue on the issue of delay in filing appeal before CIT(A), submits that he supports the order of ld CITA). The Ld.SR-DR for the Revenue submits that assessee was given sufficient ITA No.69/SRT/2024 (A.Y 08-09) Dharmesh B Ghadiali 4 opportunities to contest his case before Ld.CIT(A), however, the assessee failed to participate in appellate stage by filing proper submission and assessee does not deserve any leniency either on condonation of delay or in restoring the matter back to the file of Assessing Officer. the ld SR DR for the revenue submits that in case this bench is convince on the plea of condonation od delay, the matter may be restored to the file of ld CIT(A) to adjudicate the issue on merit, with the direction to the assessee to make compliance and not to default during the hearing before ld CIT(A). 5. We have considered the rival submission of both the parties and perused the materials available on record carefully. On the plea of condonation of delay, the Ld. AR for the assessee vehemently submitted that order of assessment was not served on the assessee due to change of address and on initiating recovery proceedings he obtained copy of assessment order and filed appeal. We find that before us, the assessee alongwith his application for condoning the delay has filed copy of house tax receipt to prove the facts about the change of address. Considering the peculiar facts of the case that the assessee we find that the assessee is not negligent, and delay in filing appeal deliberate nor intentional. Further considering the facts that when technical consideration and cause of substantial justice are pitted against each other, cause of substantial justice may be preferred. Hence, the delay in filing appeal before the ld. CIT(A) deserve to be condoned. Thus, considering the submission of Ld. AR of the assessee that NFAC/Ld.CIT(A) passed ex parte order in absence of proper compliance on the part of assessee. Therefore, keeping in view of the fact huge additions ITA No.69/SRT/2024 (A.Y 08-09) Dharmesh B Ghadiali 5 of unexplained source is made against the assessee for want of compliance. In our view the assessee deserve one more opportunity to explain the facts and to substantiate the facts that the transaction of trading commodity. Further, considering the facts that the assessment order the assessing officer made addition solely on the basis of information of investigation wing the matter is restored back to the file of Assessing Officer instead of NFAC/Ld.CIT(A). Needless to say to direct Assessing Officer shall pass order after giving fair and reasonable opportunity to assessee. The assessee is also directed to be more vigilant in future in making compliance in time and not to seek further adjournment without any valid reason and furnish all relevant and necessary evidences if so desire. With these directions the appeal of assessee is allowed for statistical purposes in above terms. 6. In the result, appeal of assessee is allowed for statistical purposes. Order pronounced in the open court on 26 th March,2024. Sd/- Sd/- (Dr ARJUN LAL SAINI) (PAWAN SINGH) [लेखा सद˟/ACCOUNTANT MEMBR] [Ɋाियक सद˟ JUDICIAL MEMBER] Surat, Dated: 26/03/2024 Dkp. Out Sourcing Sr.P.S Copy to: 1. Appellant- 2. Respondent- 3. PCIT 4. DR 5. Guard File True copy/ By order // True Copy // Sr.P.S./Assistant Registrar, ITAT, Surat