Anees Meeyamahamad Shaikh, Surat V. Income Tax Officer, Ward - 2(3)(1), Surat

ITA 749/SRT/2023

• Counselvise Citation: [2024] 130 COUNSELVISE.COM (IT) 3268 (ITAT-SURAT)
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 20-02-2024
• Assessment Year: 2016-2017
• Appeal Filed On: 01-11-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VINOD KUMAR
• Assessee Lawyers: CHAITALI SHAH
• Keywords: Condonation of delay; Set aside; Opportunity of being heard; Principle of natural justice
• Section: 143(3)

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.749/SRT/2023 Assessment Year: (2016-17) (Physical Hearing) Anees Meeyamahamad Shaikh 170/2 Tarajgam, Nr. Batiya Gam Tal. Choryasi, Surat- 394230 Vs. Income Tax Officer, Ward-2(3)(1), Surat, Aayakar Bhawan, Majura Gate, Opp. New Civil Hospital, Surat-395001 èथायीलेखासं./जीआइआरसं./PAN/GIR No.: BZOPS7141 A (अपीलाथŎ/Appellant) (ŮȑथŎ /Respondent) िनधाŊįरती की ओर से /Appellant by Mrs. Chaitali Shah, CA िनधाŊįरती की ओर से /Respondent by Shri Vinod Kumar, Sr. DR सुनवाई की तारीख /Date of Hearing 21/02/2024 घोषणा की तारीख /Date of Pronouncement 29/02/2024 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeal filed by the assessee, pertaining to Assessment Year 2016-17, is directed against the order passed by the National Faceless Appeal Centre, Delhi [in short “NFAC/Ld. CIT(A)”] dated 31.05.2023, which in turn arises out of an assessment order passed by Assessing Officer u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), dated 05.12.2018. 2. Ms. Chaitali Shah, Learned Counsel for the assessee, at the outset, submitted that appeal of assessee is time barred by 95 days. She stated that assessee filed the petition of condonation of delay, wherein the assessee has explained the cause/reason for delay. The contents of the petition for condonation of delay are reproduced below: “1) That the Ld. CIT(A) passed the order on 31.,05.2023, accordingly I was required to file appeal before Honourable Tribunal on or before 30.07.203. The appeal was actually filed on 02.11.2023 causing the delay of 95 days. 2 ITA No.749/SRT/2023/AY.2016-17 Anees Meeyamahamad Shaikh 2) That in the Form No.35 the email ID of assessee’s Chartered Accountant was mentioned. Of course, the notices were received at the email ID of the assessee also. However, assessee was dependent on his Chartered Accountant for compliance. The previous Chartered Accountant didn’t comply with the notices and therefore ex-parte appellate order was passed. 3) The appellate order was sent to the email of assessee’s Chartered Accountant and assessee. Assessee’s previous Chartered Accountant didn’t advise to file timely appeal before Honourable Tribunal. Assessee therefore consulted senior CA, Shri Rasesh Shah after passing of the due date for filing the appeal. Hence the appeal was filed belatedly which occurred as assessee didn’t get timely advise to file the appeal before Honourable Tribunal.” 3. Therefore Ld. Counsel contended that appellate order was sent to the email address of assessee’s previous Chartered Accountant (CA) and the said CA did not advise the assessee to file further appeal before Tribunal, therefore because of the mistake on the part of previous CA, the delay of 95 days occurred, which may be condoned. 4. On the other hand, Ld. Sr. DR for the Revenue opposed the prayer of the assessee for condonation of delay and stated that the assessee has not explained the sufficient cause / reason regarding delay. Therefore, the appeal of assessee may be dismissed on this score only. 5. We have heard both the parties on this preliminary issue. We note that due to mistake of previous CA of assessee, who did not advise the assessee to file appeal, on time, therefore the delay has occurred. We note that assessee should not be penalized because of the mistake committed by his advocate/chartered accountant. In this regard reliance is placed on the decision of I.T.A.T., ‘C’ Bench, Kolkata in the case of M/s. Garg Bros. Pvt. Ltd. & Others vs. DCIT [ITA Nos.2519 to 2521/Kol/2017, order dated 18.04.2018], wherein under similar set of facts and reasons, the Hon'ble Tribunal was pleased to condone the delay of 211 days by holding as under: “3. We have heard both the parties on this preliminary issue. Having regard to the reasons given in the application for condonation of delay, 3 ITA No.749/SRT/2023/AY.2016-17 Anees Meeyamahamad Shaikh we are of the considered opinion that assessee was under a bona fide belief that the impugned order of Pr. CIT was not appealable before this Tribunal since they were not advised by their Tax Consultants about this legal right. Later on, when a Senior Lawyer advised them to file an appeal, the assessees immediately took steps to file the appeals. Therefore, the delay caused. We note that delay was occurred because of the wrong advice of the Tax Professional for which assessees cannot be penalized. For the ends of justice, we condone the delay and admit the appeal for hearing.” 6. We note that reasons given in the affidavit for condonation of delay were convincing and these reasons would constitute reasonable and sufficient cause for the delay in filing the appeal. We, therefore, condone the delay in the appeal and admit for hearing. 7. On merit Ld. Counsel for the assessee submitted that during appellate proceedings, notice was issued by the NFAC/Ld.CIT(A) to previous CA who did not make compliance of the said notices of hearings, therefore the assessee could not appear before NFAC/Ld.CIT(A) and as a result the NFAC/Ld.CIT(A) has passed ex parte order without being heard to the assessee. Therefore, Ld. Counsel stated that during the appellate proceedings the assessee could not appear, however, NFAC/Ld.CIT(A), passed ex parte, which is against the principle of natural justice. The Ld. Counsel therefore contended that one more opportunity should be given to the assessee to plead his case before Assessing Officer. 8. On the other hand, Learned Senior-DR for the Revenue, argued that assessee was negligent during the appellate proceedings, hence appeal of the assessee may be dismissed. 9. We have heard both the parties. Considering the above facts, we also note that NFAC/Ld. CIT(A) passed the order ex parte order, without considering the assessee`s submission, as the assessee was 4 ITA No.749/SRT/2023/AY.2016-17 Anees Meeyamahamad Shaikh misguided by his CA/Advocate. 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. Accordingly, we set aside the order of NFAC/Ld. CIT(A) and restore the issue back to the file of the Assessing Officer for de novo assessment. We also direct the assessee to provide relevant documents and details before the Assessing Officer, as and when required by him and assessee shall co- operate in the proceedings before the Assessing Officer for disposal of its case. For statistical purposes, the appeal of the assessee is treated as allowed. 10. In the result, appeal filed by the assessee is allowed for statistical purposes. Order is pronounced on 29/02/2024 in the open court. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER स ू रत/Surat Ǒदनांक/ Date: 29/02/2024 DKP Outsourcing Sr.P.S 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