NILAM ASHWINBHAI INAMDAR, KHATODRA V. ITO, WARD-1(2)(3), SURAT

ITA 78/SRT/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 1834 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 26-06-2022
• Assessment Year: 2014-2015
• Appeal Filed On: 04-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Condonation of delay; Set aside
• Section: 144; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM आयकरअपीलसं./ITA No.78/SRT/2020 (Ǔनधा[रणवष[ / Assessment Years: (2014-15) (V ir tua l C ou rt He ari n g) Smt. Nilam Ashwinbhai Inamdar 201-202, Keshari Nandan Square, B/h. Civil Hospital, Khatodara, Surat-395002 Vs. Income Tax Officer, Ward-1(2)(3), Aaykar Bhavan, Majura Gate, Surat- 395001 èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AAQPI 4123 G (Appellant) (Respondent) Assessee by: Shri Sapnesh R Sheth, CA Revenue by: Shri Vinod Kumar, Sr. DR स ु नवाई कȧ तारȣख/ Date of Hearing : 27/06/2022 घोषणा कȧ तारȣख/Date of Pronouncement : 25/07/2022 आदेश / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: The captioned appeal filed by the assessee, pertaining to Assessment Year 2014-15, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals)-2, Surat [in short ‘ld. CIT(A)’], in Appeal No. CAS/2/342/2016-17 dated 04.09.2017, which in turn arises out of an assessment order passed by Assessing Officer u/s 144 of the Income Tax Act, 1961 (hereinafter referred to as the ‘Act’) dated 30.11.2016. 2.At the very outset, Learned Counsel for the assessee, informs the Bench that appeal filed by the assessee is barred by limitation by 878 days. The ld Counsel stated that assessee has explained the delay in her petition for condonation of delay. The assessee`s petition for condonation of delay, is reproduced below: “1. In above case, the ld. CIT(A) passed order u/s 250 of I.T. Act on 04.09.2017. As such going by this date, the appeal against order u/s 250 ought to have been filed on or before 03.11.2017. However, I could not file appeal before the above date due to following reasons: 2. In this regard it is submitted that although above order was passed by ld. CIT(A) on 04.09.2017. I did not receive copy of such order. Even I did Page | 2 ITA No.78/SRT/2020 AY. 14-15 Smt. Nilam A Inamdar not receive any notice for hearing of appeal. I came to know about order passed u/s 250 of the Act when penalty proceedings were initiated in my case. I thereafter came to know that ex-party order was passed u/s 250 of the Act. Therefore, vide letter dated 18.02.2020 requested ld. CIT(Appeal), Surat to issue copy of order so that further appeal can be filed. Accordingly, CIT(Appeal) has issued copy of appellate order passed u/s 250 of Act for above year & the same is actually received by me on 27.02.2020. 3. In light of above facts, it may kindly be noted that I could not file appeal within 60 days from the date of order of ld. CIT(A) as I was not aware of the order already passed in my case. Thus, owing to reasons beyond my control, the appeal could not be submitted before the above date. However, there is no delay in filing of appeal considering the date on which the order was actually received by me i.e. 27.02.2020. 4. Here, it is also pertinent to refer to the judgment of Honourable Supreme Court in the case of Collector, Land Acquisition V. MST. Katiji & Ors. 167 ITDR 471, wherein it was held that “sufficient cause” for the purpose of condonation of delay should be interpreted with a view to do even-handed justice on merits in preference to approach which scuttles a decision on merits. This decision of Supreme Court is applied by Gujarat High Court in the case of Dinesh Nagindas ShahV. CIT – 273 ITR 229. 5. In light of above submissions & judicial pronouncements, it is prayed that delay if any may kindly be condoned & appeal may please be admitted in the interest of natural justice, equity & fair play.” 3.Therefore, ld Counsel pleads that there is no delay in filing the appeal considering the date on which the order was actually received by assessee on 27.02.2020. 4. On the other hand, Learned Senior Departmental Representative (ld.Sr DR) for the Revenue submitted that such huge delay should not be condoned and appeal of the assessee may be dismissed. 5. We have heard both the parties on this preliminary issue. We note that assessee did not receive notice for hearing during the appellate proceedings and that is why the ld CIT(A) has passed ex-parte order. The assessee came to know about order passed u/s 250 of the Act when penalty proceedings were initiated against the assessee. Then after the assessee wrote a letter dated 18.02.2020 to ld CIT(A) and requested ld. CIT(A) to provide him a copy of the order, so that Page | 3 ITA No.78/SRT/2020 AY. 14-15 Smt. Nilam A Inamdar further appeal can be filed. Accordingly, CIT(Appeal) has issued copy of appellate order passed u/s 250 of Act, to the assessee on 27.02.2020. After this, the assessee filed appeal before the Tribunal on 05.03.2020, which is within the time limit. Hence, there is no delay to condone. 6. We note that assessee wrote a letter dated 15.02.2020, wherein assessee requested the ld CIT(A) to provide the necessary details and documents relating to assessee`s appeal, the said letter is placed at paper book page no.1. The assessee also wrote a letter dated 15.02.2020, to the assessing officer wherein assessee requested the assessing officer to provide him details and documents relating to penalty imposed by the AO under section 271(1) (c) of the Act, the said letter is placed at paper book page no.4. These events clearly demonstrate that assessee has received appellate order, first time on 27.02.2020, and soon after that assessee has filed appeal before Tribunal on 05.03.2020, which is within the time limit. This way, in our view, there is no delay in filing the appeal, hence we admit assessee`s appeal for adjudication. 7. Learned Counsel contended that during the appellate proceedings, neither the assessee nor her legal representative got the notice of hearing and therefore Ld. CIT(A) has passed an ex parte order without adjudicating various issues on merits, hence Learned Counsel prays the Bench that an another opportunity should be given to the assessee to plead his case before ld. CIT(A), therefore entire lis may be remitted back to the file of ld CIT(A) for fresh adjudication. 8.However, Ld. Sr.DR opposed the plea taken by Ld. Counsel of the assessee. 9. Considering the above facts, we note that assessee could not plead his case successfully before the ld. CIT(A). Besides, ld CIT(A) did not adjudicate the various issues raised by the assessee, on merit. Therefore, we are of the view that one more opportunity should be given to the assessee to plead his case before ld CIT(A). 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 Page | 4 ITA No.78/SRT/2020 AY. 14-15 Smt. Nilam A Inamdar heard to contest his case. Therefore, without delving much deeper into the merits of the case, in the interest of justice, we restore the matter back to the file of Ld. CIT(A) for de novo adjudication and pass a speaking order after affording sufficient opportunity of being heard to the assessee, who in turn, is also directed to contest his stand forthwith. Therefore, we deem it fit and proper to set aside the order of the ld. CIT(A) and remit the matter back to the file of the ld. CIT(A) to adjudicate the issue afresh on merits. For statistical purposes, the appeal of the assessee is treated as allowed. 10. In the result, the appeal of the assessee is allowed for statistical purposes. Order is pronounced on 25/07/2022 by placing result on notice board. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat / Ǒदनांक/ Date: 25/07/2022 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