IKBALBHAI MUSABHAI CHAUHAN, BHARUCH V. ASSESSING OFFICER, BHARUCH

ITA 909/SRT/2023

• Counselvise Citation: [2024] 130 COUNSELVISE.COM (IT) 4815 (ITAT-SURAT)
• Duration Of Justice: 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-03-2024
• Assessment Year: 2012-2013
• Appeal Filed On: 28-12-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VINOD KUMAR
• Assessee Lawyers: KRUTARTH DESAI
• Keywords: Set aside; Opportunity of being heard; Reasonable cause; Principle of natural justice
• Section: 147; 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.909/SRT/2023 Assessment Year: (2012-13) (Physical Hearing) Ikbalbhai Musabhai Chauhan, 1, Kasbawad, Indor Jhagdia, Bharuch – 393120, Gujarat Vs. The ITO, Ward – 1(3), Bharuch èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AQCPC4494Q (Appellant) (Respondent) Appellant by Shri Krutarth Desai, AR with Ms Disha Kharod, CA Respondent by Shri Vinod Kumar, Sr. DR Date of Hearing 12/03/2024 Date of Pronouncement 12/03/2024 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeal filed by the assessee, pertaining to Assessment Year (AY) 2012-13, 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 30.09.2023, which in turn arises out of an assessment order passed by the Assessing Officer u/s 144 r.w.s 147 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), dated 03.12.2019. 2. The appeal filed by the assessee for AY.2012-13, is barred by limitation by 25 days. The assessee has moved a petition, requesting the Bench to condone the delay. The Ld. Counsel for the assessee stated that ld. CIT(A) has passed the ex parte order on 30.09.2023, which was received by the assessee on 05.10.2023. The appeal before this Tribunal Page | 2 ITA.909/SRT/2023/AY.2012-13 Ikbalbhai Musabhai Chauhan was required to be filed within 60 days that is on or before 04.12.2023. However the assessee filed the appeal on 29.12.2023. Therefore there is a delay of 25 days. The Ld. Counsel submitted that the tax consultant, who has registered his e-mail id in the Income Tax portal, was negligent and did not inform the assessee, therefore delay has occurred. The assessee is a farmer and therefore he is not very much acquainted with technology and computer. The old tax consultant who delivered the order to the assessee, was not in a position to assist the assessee with respect to the formalities of filing the appeal before the Tribunal, therefore this delay has occurred which may condoned by this Tribunal, in the interest of justice. 3. On the other hand, Learned Departmental Representative (Ld. DR) for the Revenue submitted that assessee has failed to explain the reasonable cause / sufficient reason for the delay; hence delay should not be condoned. 4. We have heard both the parties on this preliminary issue and note that because of the mistake of the old tax consultant, who has not informed the assessee, the delay of 25 days has occurred in filing appeal before this Tribunal. We note that assessee was not negligent but due to lack of legal advice of old tax consultant, the delay has occurred in filing the present appeal. 5. We are of the view that provisions of law have to be adhered strictly and that one cannot be allowed to act in leisure and make a mockery of enacted law, because law and provisions are laid down to benefit both sides of litigation. Be that as it may, we have to do justice and the Hon’ble Supreme Court in the case of Collector, Land Page | 3 ITA.909/SRT/2023/AY.2012-13 Ikbalbhai Musabhai Chauhan Acquisition vs Mst. Katiji and others, reported in 167 ITR 471, (1988 SC 897) (7) has observed as follows: “4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay.” 6. When we weigh this aspect then the side of justice becomes heavier and casts a duty on us to deliver justice. The 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 this appeal. We, therefore, condone this delay and admit the appeal for hearing. 7. On merit, Ld. Counsel for the assessee submitted that assessment order was framed by the Assessing Officer under section 144 of the Act in spite of the fact that assessee has made partial compliance before the Assessing Officer. On appeal, the ld. CIT(A) has dismissed the appeal of the assessee on account of non-prosecution. The Ld. Counsel submitted that assessee could not appear before the ld. CIT(A) because of the circumstances beyond his control, therefore Ld. Counsel contended that one more opportunity should be given to the assessee to plead his case before the Assessing Officer, therefore matter may be remitted back to the file of the Assessing Officer for fresh adjudication. 8. On the other hand, ld. Sr. DR for the Revenue stated that assessee was negligent during the appellate proceedings; therefore appeal of the assessee should be dismissed. 9. We have heard both the parties. Considering the above facts, we note that assessee could not plead his case successfully before the ld. Page | 4 ITA.909/SRT/2023/AY.2012-13 Ikbalbhai Musabhai Chauhan CIT(A). We also note that Ld. CIT(A) has not passed the order as per the mandate of provisions of section 250(6) of the Act. That is, ld. CIT(A) did not pass order on merit based on the material available on record. Moreover, the assessment order was also framed by the Assessing Officer under section 144 of the Act. 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 the issue afresh on merits. 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 12/03/2024 in the open court. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 12/03/2023 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) Page | 5 ITA.909/SRT/2023/AY.2012-13 Ikbalbhai Musabhai Chauhan 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat