Arjunsinh Chandrasinh Rana, Bharuch V. Income Tax Officer, Ward 1(3), Bharuch

ITA 887/SRT/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 3491 (ITAT-SURAT)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-03-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 21-02-2024
• Assessment Year: 2017-2018
• Appeal Filed On: 20-12-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Salary income; Opportunity of being heard; Principle of natural justice; Condonation of delay; Set aside
• 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.887/SRT/2023 (Ǔनधा[रणवष[ / Assessment Year: (2017-18) (Hybrid Hearing) Arjunsinh Chandrasinh Rana B-7, Shyamal Complex, Nandelav Road, Nr. Mangalam Society, Bharuch-392001 Vs. Income Tax Officer, Ward-1(3), Bharuch, Income Tax Office, Hari Kun, Station Road, Bharuch-356069 èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AKVPR 1902 K (अपीलाथŎ /Appellant) (ŮȑथŎ/Respondent) िनधाŊįरती की ओर से /Assessee by : Shri Sakar Sharma, CA राजèव कȧ ओर से /Respondent by: Shri Vinod Kumar, Sr-D.R सुनवाई की तारीख/ Date of Hearing : 22/02/2024 घोषणा की तारीख/Date of Pronouncement : 07/03/2024 आदेश / ORDER PER DR. A. L. SAINI, AM: Captioned appeal filed by the assessee, pertaining to assessment year 2017-18, is directed against the order passed by the National Faceless Appeal Centre, Delhi (in short “NFAC/Ld CIT(A)”) dated 06.10.2023, which in turn arises out of an assessment order passed by the Assessing Officer under section 144 of the Income-Tax Act, 1961 (hereinafter referred to as 'the Act') dated 14.11.2019. 2. The appeal filed by the assessee for Assessment Year 2017-18, is barred by limitation by 16 days. The assessee has moved a petition requesting the Bench to condone the delay. The contents of the petition for condonation of delay are reproduced below: “ I, Arjunsinh Chandrasinh Rana of B-7, Shyamal Complex, Nandelav Road, Nr. Mangalam Society, Bharuch-392001, Gujarat, India solemnly affirm as under: 1. That I have preferred appeal for A.Y 2017-18 in ITA No.887/SRT/2023 on 21/12/2013 before the Hon’ble Income-tax Appellate Tribunal, Surat Bench at Surat which is time barred by 16 days as per defect notice issued to me. Page | 2 ITA No. 887/SRT/2023 A.Y.17-18 Arjunsinh C Rana 2. That I submit that the order of CIT(A)-NFAC was communicated in designated email ID given in Form No.35 on 6 th October, 023 and, therefore, appeal was required to be presented on or before 5 th December, 2023 before the Hon’ble Tribunal. 3. That the said appeal could not be furnished to the Hon’ble Tribunal before the due date for the reasons beyond my control. Though appellate order was communicated at the designated email ID given in Form No.35 on the date of it being passed by the Ld.CIT(A)-NFAC yet I had no knowledge about passing of any such order till I got text message on my mobile on 10 th October, 2023. Accordingly, I approached my then tax consultant i.e MRM Consultant Bharuch who by logging in my account at income-tax portal downloaded and provided me copy of appellate order and advised me to prefer an appeal before he Income-tax Appellate Tribunal against the order passed by the Ld.CIT(A)-NFAC. He expressed his inability to assist me in filing of appeal before the Income-tax Appellate Tribunal as he is not handling such matters. Therefore, substantial time lapsed in understanding as to what needs to be done and what kind of documents would be required to prefer an appeal before the Tribunal. Thereafter, on advise of someone known to me, I approached Shri Bhaskar Patel, Tax Advocate at Baroda who sought various documents in order to understand the implications arising from the order of the CIT(A)-NFAC since appellate order was ex-parte due to no representation. All requisite documents, I could compile and furnish to him by12th December, 2023 which include my bank account statements viz. a viz nature of credits appearing therein. Form No.16 issued by my employer certifying salary income earned during the year and the amount liable to be taxed during the year etc., I also explained to him that since notice(s) for appellate proceedings before the Ld.CIT(A)-NFAC were sent in email ID given in Form No.35 which was of one of my earlier colleague who is turn did not forwarded such notice(s) to me being shifted to another place, I could not respond to such notice(s) in absence of any knowledge about such notice(s). Shri Bhaskar Patel looks after Tribunal matters through CA Sakar Sharma who is stationed at Ahmedabad. Accordingly, I forwarded all such documents to CA Sakar Sharma who examined the documents sent by me, analysed them and then prepared the appeal and emailed to Shri Bhaskar Patel. Thereafter, I paid appeal fees on 18.12.2023, signed the appeal and filed the same at Surat on 21.12.2023. therefore, delay in filing of appeal is on account of justified and bona fide reasons and not on account of any negligence on my part. 4. That this affidavit is made to appraise the Hon’ble Tribunal explaining reasons for delayed filing of appeal by 16 days as intimated to me by Tribunal on 21.12.2023 at the time of filing of appeal in ITA No.887/SRT/2023 for A./Y 2017- 18 on 21/12/2023 and to make request to the Hon’ble Tribunal to condone the delay in filing of appeal in the given facts and circumstances of the case in the interests of justice.” 3. Learned Counsel for the assessee, argued that due to communication gap, between assessee and his advocate, the minor delay in filing appeal had occurred. The order of ld CIT(A) was sent to the e-mail address of the Page | 3 ITA No. 887/SRT/2023 A.Y.17-18 Arjunsinh C Rana assessee’s previous Counsel, who do not suppose to file the appeal before the Tribunal, and later on the appellate order was communicated to the assessee physically, hence delay in filing the appeal has occurred. Therefore, Ld. Counsel contended that sufficient cause and reasons were explained in the petition for condonation of delay and based on the reasons given in the petition for condonation of delay, the delay of 16 days, in filing this appeal, may be condoned. 4. On the other hand, Ld. Sr-DR for the Revenue has strongly objected the prayer for condonation of delay. He pointed out that such delay cannot be condoned on such flimsy reasons. The Learned Sr-DR for the Revenue submitted that assessee has failed to explain sufficient cause or reason to condone delay. Therefore, such delay should not be condoned and for that Ld. Sr-DR relied on the Judgment of Hon`ble Supreme Court, in Civil Appeal No.7696 of 2021 of Hon’ble Apex Court in the case of Majji Sannemma & Sanyasirao vs. Reddy Sredevi & Ors. 5. We have heard both the parties on this preliminary issue. We note that reasons given by the assessee in his petition for condonation of delay are sufficient reasons. We note that such minor delay has occurred on account of communication gap between assessee and his advocate / CA. The appellate order was not communicated to the assessee physically and it was communicated through e-mail of previous advocate of assessee, who was not supposed to file assessee`s appeal. Therefore, such minor delay has occurred due to communication gap and hence such delay should be condoned. 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 in the appeal. We, therefore, condone the delay in assessee’s appeal and admit for hearing. Page | 4 ITA No. 887/SRT/2023 A.Y.17-18 Arjunsinh C Rana 6. On merit, Ld.Counsel submitted that order passed by the NFAC/Ld.CIT(A) is ex parte order and NFAC/Ld.CIT(A) did not discuss the issue on merit, therefore one more opportunity should be given to assessee to plead his case before NFAC/Ld.CIT(A). Therefore, ld Counsel contended that matter may be remitted back to the file of Ld CIT(A) for fresh adjudication. 7. On the other hand, Ld.Sr-DR for the Revenue submitted that assessee was negligent during appellate proceedings, therefore appeal should be dismissed at this stage. However, if the appeal is remitted back to the Ld.CIT(A) then heavy cost should be imposed on the assessee. 8. We have heard both the parties and perused the materials available on record. We note that in the assessee’s case under consideration, the assessment was carried out u/s 144 of the Act and the impugned order passed by the ld. CIT(A), is an ex parte order and non-speaking order, therefore, we do not wish to make any comments on the merits of the grounds raised by the assessee. Considering the above facts, we note that assessee has not given sufficient opportunity of being heard and could not plead his case successfully before the ld. CIT(A). We note that the ld. CIT(A) did not discuss the assessee’s case on merits based on the material available before him hence it is a violation of principle of natural justice. 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 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 Page | 5 ITA No. 887/SRT/2023 A.Y.17-18 Arjunsinh C Rana 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. 9. In the result, the appeal of the assessee is allowed for statistical purposes. Order is pronounced on 07/03/2023 by placing record on notice board. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER स ू रत /Surat Ǒदनांक/ Date: 07/03/2024 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