HEMAL ASHWIN DESAI, SURAT V. ITO (INT. TAX.), SURAT, SURAT

ITA 805/SRT/2023

• Counselvise Citation: [2024] 130 COUNSELVISE.COM (IT) 2648 (ITAT-SURAT)
• Duration Of Justice: 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-03-2024
• Assessment Year: 2017-2018
• Appeal Filed On: 24-11-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VINOD KUMAR
• Assessee Lawyers: P. M. JAGASHETH
• Keywords: Condonation of delay; Set aside; Opportunity of being heard
• Section: 144

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.805/SRT/2023 Assessment Year: (2017-18) (Physical Hearing) Hemal Ashwin Desai, 14, Ayodhya Nagari Soceity, Honey Park Road, Honey Park Char Rasta, Surat - 395009 Vs. The ITO (Int. Tax.), Surat èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AHWPD4012G (Appellant) (Respondent) Appellant by Shri P. M. Jagasheth, CA Respondent by Shri Vinod Kumar, Sr. DR Date of Hearing 05/03/2024 Date of Pronouncement 05/03/2024 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeal filed by the assessee, pertaining to Assessment Year (AY) 2017-18, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals), [in short “the ld. CIT(A)”], National Faceless Appeal Centre (in short ‘the NFAC’), Delhi, dated 31.08.2023, which in turn arises out of an assessment order passed by the Assessing Officer u/s 144 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), dated 20.12.2019. 2. The appeal filed by the assessee for assessment year 2017-18 is barred by limitation by 29 days. The assessee has moved a petition for condonation of delay. The content of the petition for condonation of delay is reproduced below: Page | 2 ITA.805/SRT/2023/AY.2017-18 Hemal Ashwin Desai “In respect of the above, I would like to submit that I have filed an appeals under section 253(1) of the Income Tax Act, 1961 on 25.11.2023 vide ITA No.805/SRT/2023 against the order of the Commissioner (Appeals) relating to AY.2017-18 made on the 31.08.2023, which was uploaded on Income Tax E-filing portal under e-proceedings. Though this appeal should have been filed in the office of the Tribunal on or before the counting the period of sixty days from the date of communication of the order, but it could not be so filed because I am living at abroad and I am filing Return of Income as NRI status, when I have known about the CIT(A)’s Order, I have immediately paid Appeal Fees Challan on 23.10.2023, My ‘AR’ has prepared Appeal Form -36 with grounds of appeal and send to my brother, Bhavin Ashwin Desai, Surat for signature, but he forgot to send me, thereafter, I have made Digital signature for filing of online appeal and I have filed online appeal on 25.11.2023, hence, necessary arrangement could not be made for fling of appeal before Hon'ble ITAT, Surat in time. In view of the above facts, it is clear that is the delay in submission of the appeal is due to good and sufficient reasons, therefore, pray that the delay in filing the appeal should be condoned and the appeal should be treated as filed within the allowed time.” 3. Based on the above contents given in the petition for condonation of delay, the Ld. Counsel for the assessee argued that assessee has explained the sufficient cause and reason for delay, therefore in the interest of justice, the delay should be condoned and appeal of the assessee may be admitted for hearing on merit. 4. On the other hand, learned Senior Departmental Representative (ld. Sr. DR) for the Revenue opposed the prayer of the assessee for condonation of delay and stated that the assessee has failed to explain the sufficient reason for delay, hence the delay should not be condoned. 5. We have heard both the parties on this preliminary issue. We note that assessee under consideration is non-resident and because of communication gap between him and his Advocate/relative in India, Page | 3 ITA.805/SRT/2023/AY.2017-18 Hemal Ashwin Desai the delay has occurred. We note that the words “sufficient cause”, as appearing in Section 5 of Limitation Act, should receive a liberal construction when the, delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the applicant, in order to advance substantial justice. The words "sufficient cause” for not making the application within the period of limitation" should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case. The decisive factor in condonation of delay is not the length of delay but sufficiency of a satisfactory explanation. We note that the reason given in the affidavit for condonation of delay are convincing and these reasons would constitute reasonable and sufficient cause for the delay in filing this appeal. We, therefore, condone the delay and admit the appeal for hearing. 6. On merit, Ld. Counsel for the assessee submitted that order passed by the ld. CIT(A), although is on merit, however, since the assessee could not submit some relevant documents and evidences during the appellate proceedings, as these documents and evidences were not available readily when the appellate proceedings were going on. Besides, Ld. Counsel also stated that the order passed by the Assessing Officer is under section 144 of the Act, as the assessee has failed to submit relevant documents and evidences during the assessment stage also, therefore Assessing Officer has not examined the basic documents of the assessee. Therefore, ld Counsel contended that one more opportunity may be given to the assessee to plead his case before the assessing officer, and therefore the matter may be Page | 4 ITA.805/SRT/2023/AY.2017-18 Hemal Ashwin Desai remitted back to the file of the Assessing Officer for fresh adjudication. The Ld. Counsel also stated that the assessee would be ready to file relevant documents and evidences before Assessing Officer and will co-operate in assessment proceedings, therefore matter may be remitted back to the file of the Assessing Officer for fresh adjudication. 7. On the other hand, ld. Sr. DR for the Revenue stated that appeal of the assessee should be dismissed at this stage and no further innings should be given to the assessee. 8. We have heard both the parties. Considering the above facts, we note that assessee could not plead his case successfully before the Assessing Officer, as the order passed by the assessing officer is an ex-parte order and assessing officer could not examine the basic documents and evidences of the assessee. 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. 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 Assessing Officer 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 Assessing Officer to adjudicate Page | 5 ITA.805/SRT/2023/AY.2017-18 Hemal Ashwin Desai the issue afresh on merits. For statistical purposes, the appeal of the assessee is treated as allowed. 9. In the result, appeal filed by the assessee is allowed for statistical purposes. Order is pronounced on 05/03/2024 in the open court. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 05/03/2024 SAMANTA 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