Ekalavya Gift Gaileries Private Limited, New Delhi V. ITO Ward 1(5), Faridabad

ITA 865/DEL/2023

AI Insights

The case involves M/s Ekalavya Gift Galleries Pvt. Ltd., which appealed against the order of the CIT(A), National Faceless Appeal Centre, Delhi, confirming a penalty of Rs. 10,000 for non-compliance with notices under section 142(1) of the Income Tax Act for the assessment years 2016-17 and 2017-18. The primary contention in the appeals was the dismissal of the appeals by the CIT(A) on the grounds of delay in filing, without deciding the issues on merits. The Income Tax Appellate Tribunal (ITAT) found that the CIT(A) had not provided an opportunity for the assessee to explain the delay, which is a necessary procedural step.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 112828 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-09-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 03-09-2023
• Assessment Year: 2016-2017
• Appeal Filed On: 27-03-2023
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Condonation of delay; Set aside
• Section: 142(1)

Judgement Text

1 ITA nos. 865 & 866/Del/2023 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “B”: NEW DELHI BEFORE SHRI NARENDRA KUMAR BILLAIYA, ACCOUNTANT MEMBER AND SHRI ANUBHAV SHARMA, JUDICIAL MEMBER ITA No. 865 /DEL/2023 A.Y. 2016-17 AND ITA No. 866 /DEL/2023 A.Y. 2017-18 M/s Ekalavya Gift Gaileries Pvt. Ltd., IPSO Legal, H-35, 1 st Floor, Jangpura Extension, New Delhi-110014 PAN- AADCE4842N Vs Income-tax Officer, Ward 1(5), Faridabad. APPELLANT RESPONDENT Assessee represented by Shri Shyam Sundar, Adv. Department represented by Shri Vivek Kumar Upadhyay, Sr. DR Date of hearing 04.09.2023 Date of pronouncement 04.09.2023 O R D E R PER ANUBHAV SHARMA, JM: Heard and perused the record. 2. The assessee has preferred these appeals for A.Y. 2016-17 and 2017-18, challenging the order of learned CIT(A), National Faceless Appeal Centre (NFAC), Delhi, confirming the penalty levied by the AO amounting to Rs. 10,000/- for non-compliance of the notices u/s 142(1) of the Act. 2 ITA nos. 865 & 866/Del/2023 3. During the course of hearing it transpired that the learned CIT(A) has not decided the issues on merits at all and had dismissed both the appeals on the basis of delay in filing the same. 3.1. As submitted by learned AR, the order reflects that before the learned CIT(A) no separate application for condonation of delay was filed and instead of writing the reasons for delay in column no. 15 of form no. 35, it was mentioned that reasons for delay will be submitted at the time of hearing. Learned CIT(A) also observed that form no. 35 was not accompanied by any affidavit seeking the condonation of delay. 4. The Bench is of the considered opinion that certainly condonation of delay is not a matter of right and is a matter of discretion, however, when a litigant is being non suited on the basis of delay in seeking redressal, the litigant needs an opportunity to be called to explain the reasons for delay. Admittedly it is not a case where the assessee while filing the appeal before the learned CIT(A) had not acknowledged delay or otherwise ignored the delay, as it was mentioned in form no. 35 that the reasons will be explained at the time of hearing. Once this aspect was in the knowledge of the learned CIT(A), then being a quasi judicial Authority, it was supposed to call upon the appellant to justify the delay in filing the appeal. The order does not disclose if any opportunity of hearing on this aspect was given. Therefore, the order of learned CIT(A) is not sustainable and accordingly set aside. 3 ITA nos. 865 & 866/Del/2023 5. The appeals are allowed for statistical purposes and the issue of condonation of limitation and subsequent determination on merits, if needed, are restored to the file of learned CIT(A) to decide the question of delay of limitation in filing appeal, after giving due opportunity of hearing to the assessee. Order pronounced in open court on 04.09.2023. Sd/- Sd/- (NARENDRA KUMAR BILLAIYA) (ANUBHAV SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER *MP* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI