Smt. Chandralata N. Nirban, Ahmedabad V. The Income Tax Officer, Ward-1(3)(2), Ahmedabad

ITA 708/AHD/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4586 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 22-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: D K PARIKH
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Right to appeal; Condonation of delay
• Section: 143(3)

Judgement Text

ITA NO.708/AHD/2017 ASSESSMENT YEAR: 2012-13 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD SMC BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR AM] ITA NO.708/AHD/2017 ASSESSMENT YEAR: 2012-13 CHANDRALATA N. NIRBAN, .. .......... APPELLANT A-4, GAUTAM VIHAR SOCIETY, USMANPURA, AHMEDABAD 380 013. [PAN: ABNPN 6376 J] VS. INCOME TAX OFFICER, WARD 1(3)(2), AHMEDABAD. ....................... RESPONDENT APPEARANCES BY: D.K. PARIKH FOR THE APPELLANT SONIA KUMAR FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 12.10.2018 DATE OF PRONOUNCING THE ORDER : 12.10.2018 O R D E R 1. BY WAY OF THIS APPEAL, THE ASSESSEE APPELLANT HA S CHALLENGED CORRECTNESS OF THE ORDER DATED 30.01.2017, PASSED BY THE LEARNED CIT(A ), IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2012-13. 2. THE GRIEVANCES RAISED IN THE APPEAL ARE AS FOLLO WS :- (1) THE LD. COMMISSIONER OF INCOME-TAX (A) HAS ERRE D IN LAW AND ON FACTS IN DISMISSING THE APPEAL RAISING THE GROUNDS OF APPEAL AGAINST THE ADDITION OF RS.15,16,000/- MADE BY THE ASSESSIN G OFFICER AS UNEXPLAINED CASH CREDIT AND ALSO AGAINST THE DISALL OWANCE OF RS.4,11,000/- OUT OF SALARY EXPENSES CLAIMED. (2) THE LD. COMMISSIONER OF INCOME-TAX (A) HAS ERRE D IN LAW AND ON FACTS IN DISMISSING THE APPEAL ON THE GROUND OF FIL ING THE APPEAL BELATEDLY WITHOUT CALLING FOR THE EXPLANATION FROM THE APPELLANT BEFORE DISMISSING THE APPEAL. (3) THE LD. COMMISSIONER OF INCOME-TAX (A) OUGHT TO HAVE GRANTED AN OPPORTUNITY OF BEING HEARD TO THE APPELLANT SO AS T O MEET WITH THE ITA NO.708/AHD/2017 ASSESSMENT YEAR: 2012-13 PAGE 2 OF 3 PRINCIPLES OF NATURAL JUSTICE AND TO APPRAISE THE G ENUINE DIFFICULTIES FACED BY YOUR APPELLANT WHICH RESULTED DELAY IN FIL ING THE APPEAL. (4) ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (A) OUGHT TO HAVE GRANTED THE RELIEF AS PRAYED BY THE APPELLANT AND OUGHT TO HAVE GRANTED APPROPRIATE REL IEF AS DEEMED FIT. (5) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX (A) MAY BE SET-ASIDE AND THE LD. CIT(A) BE DIRECTED TO ISSUE FRESH NOTICE OF HEARING FOR CONSIDERING THE I SSUE OF CONDONATION OF DELAY IN FILING THE APPEAL IN QUESTI ON AND DECIDE THE GROUNDS OF APPEAL ON MERITS. (6) IT IS ALTERNATIVELY ALSO PRAYED THAT THE GROUND S OF APPEAL AS RAISED THROUGH MEMO OF APPEAL FILED BEFORE THE LD. CIT(A) BE CONSIDERED AND THE APPROPRIATE RELIEF AS PRAYED THEREIN BE GRANTED . 3. WHEN THIS APPEAL WAS CALLED OUT FOR HEARING, LEA RNED COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE LD. CIT(A) IN THE IMPUGNED ORD ER DISMISSED THE APPEAL EX-PARTE ON THE GROUND THAT THE APPEAL WAS TIME BARRED BY 19 DA YS. LEARNED COUNSEL SUBMITS THAT THE ASSESSEE WAS NOT PUT TO NOTICE WITH REGARD TO T HE ALLEGED DEFICIENCY ATTRIBUTED AND NO OPPORTUNITY WAS GIVEN TO EXPLAIN THE DELAY AND T O FILE CONDONATION PETITION, AS MAY HAVE BEEN NECESSARY. IT IS POINTED OUT THAT THE LD . CIT(A) HAS DECIDED THE APPEAL WITHOUT AFFORDING THE ASSESSEE ANY OPPORTUNITY OF H EARING AND DISMISSED THE APPEAL EX- PARTE ON THE GROUND THAT IT IS A DELAYED APPEAL UNA CCOMPANIED BY A PETITION SEEKING FOR CONDONATION OF DELAY. HE FURTHER SUBMITS THAT IT I S NOT STATUTORY REQUIREMENT THAT THE CONDONATION PETITION MUST BE FILED ALONG WITH THE A PPEAL ITSELF AND IT CAN ALWAYS BE FILED DURING THE COURSE OF HEARING. HE, HOWEVER, PRAYED THAT THE MATTER MAY BE RESTORED TO THE LD. CIT(A) FOR ADJUDICATING THIS ASPECT AFRESH ON MERIT, AS MAY BE NECESSARY, AFTER GIVING THE ASSESSEE AN OPPORTUNITY TO EXPLAIN THE A CTUAL FACTS WITH RESPECT TO DELAY AND FILING OF CONDONATION PETITION. 4. LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY R ELIES UPON THE STAND OF THE LD. CIT(A) AND SUBMITS THAT IT IS NOT STATUTORY REQ UIREMENT ON THE PART OF THE LD. CIT(A) TO ISSUE SPECIFIC NOTICE WITH RESPECT TO DELAY IN FILI NG OF CONDONATION OF DELAY ON THE PART OF THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE AP PLICABLE LEGAL POSITION. ITA NO.708/AHD/2017 ASSESSMENT YEAR: 2012-13 PAGE 3 OF 3 6. IN MY CONSIDERED VIEW THE VERY ESSENCE OF JUDICI AL PROCESS ITSELF IS TRANSPARENCY. A FAIR OPPORTUNITY TO BOTH THE PARTIES OUGHT TO BE GIVEN IN SITUATIONS IN WHICH THE APPELLANT IS DEPRIVED OF HIS RIGHT VALUABLE RIGHTS, SUCH AS RIGHT TO APPEAL. THE APPELLANT SHOULD BE AFFORDED OPPORTUNITY NOT ONLY TO EXPLAIN THE CORRECT FACT BUT ALSO TO FILE CONDONATION PETITION AS MAY BE NECESSARY. THE ABSE NCE OF CONDONATION PETITION, IN A SITUATION IN WHICH ASSESSEE HAS NOT BEEN AFFORDED A NY OPPORTUNITY OF HEARING IN THIS REGARD, AND CONFRONTED WITH THE FACT OF DELAY IN FI LING APPEAL, CANNOT BE GROUND ENOUGH TO DISMISS THE APPEAL EX-PARTE. I, THEREFORE, DEEM IT FIT AND PROPER TO REMIT THE MATTER TO THE FILE OF LD. CIT(A) FOR ADJUDICATION AFRESH, AFT ER PUTTING THE ASSESSEE TO NOTICE WITH RESPECT TO ALLEGED DELAY AND GIVING HIM AN OPPORTUN ITY TO FILE A CONDONATION PETITION, IF NECESSARY, AND THEN DECIDE THE MATTER ON MERIT AFTE R GIVING A FAIR OPPORTUNITY OF HEARING TO THE ASSESSEE. 7. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER DICTATED AND PRONOUNCED IN THE OPEN COURT IMMEDIATELY AFTER HEAR ING ON THE 12 TH OCTOBER, 2018. SD/- PRAMOD KUMAR (ACCOUNTANT MEMBER) DATED: AHMEDABAD, THE 12 TH DAY OF OCTOBER, 2018. PBN/* COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD