AJAY DNYANOBA TINGRE, Pune V. Dy Commissioner of Income Tax, Circle 7, Pune

ITA 934/PUN/2022

AI Insights

The case involves Ajay Dnyanoba Tingre, the appellant, contesting an ex parte order from the CIT(A)-5, Pune, which dismissed his appeal without merit consideration due to non-appearance. The original assessment by the AO under section 143(3) of the Income Tax Act increased the assessed income significantly from the returned income. The Tribunal criticized the CIT(A) for not adjudicating the appeal on its merits despite the absence of the appellant, referencing judicial precedents that support the resolution of cases based on substantive issues rather than procedural lapses. The Tribunal also addressed the significant delay in filing the appeal, condoning it based on the principles laid down in similar cases by the Bombay High Court and the Supreme Court.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 137760 (ITAT-PUNE)
• Duration Of Justice: 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 06-02-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 20-12-2022
• Other Referred Cases: Vijay Vishin Meghani Vs. DCIT & Anr, Concord of India Ins. Co. Limited VS Nirmala Devi, Anil Kumar Nehru and Another vs. ACIT, Anil Kumar Nehru vs. ACIT
• Laws Referred To: Income Tax Act
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Keywords: Question of law
• Section: 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH, ‘A’ PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER आयकर अपील सं. / ITA No.934/PUN/2022 नधा रण वष / Assessment Year : 2012-13 Ajay Dnyanoba Tingre, S.No.17/1/C, Dhanori, Pune 411 015 Maharashtra PAN ADHPT5662R Vs. DCIT, Circle-7, Pune Appellant Respondent आदेश / ORDER PER R.S. SYAL, VP : This appeal by the assessee is directed against the ex parte order passed by the CIT(A)-5, Pune on 23-11-2017 in relation to the assessment year 2012-13. 2. We have heard both the sides and gone through the relevant material on record. Shorn of needless facts, it is seen that the AO completed the assessment u/s.143(3) of the Act determining total income at Rs.42,36,790/-, as against the returned income of Rs.24,31,458/-. The ld. CIT(A), in para 2 of the impugned order, noted that various opportunities were afforded to the assessee, Assessee by Shri Mahavir Atal Revenue by Shri Ramnath P. Murkunde Date of hearing 07-02-2023 Date of pronouncement 07-02-2023 ITA No.934/PUN/2022 Ajay D. Tingre 2 which were not availed. He, therefore, proceeded ahead and passed the ex-parte order qua the assessee dismissing the appeal in limine without going into merits. In our considered opinion, this course of action is not open to the ld. first appellate authority. Even if the assessee does not put in appearance, he is supposed to dispose of the appeal on merits. He is not vested with a power to dismiss the appeal for want of presence. The ld. CIT(A) in the extant case has breached the above course by dismissing the appeal in limine without going into its merits. As such, the impugned order cannot be countenanced. 3. Before parting, it is pertinent to mention that the instant appeal is time barred before the Tribunal by 1884 days. There is no dispute that under section 253(5) of the Act, the Tribunal may admit an appeal filed beyond the period of limitation where it is satisfied that there exists a sufficient cause on the part of the assessee for not presenting the appeal within the prescribed time. 4. The moot point is as to whether such a long delay deserves condonation. At this stage, it is relevant to note the judgment of the Hon’ble Bombay High Court in Vijay Vishin Meghani Vs. DCIT & Anr (2017) 398 ITR 250 (Bom) holding that none should be deprived of an adjudication on merits unless it is found that the ITA No.934/PUN/2022 Ajay D. Tingre 3 litigant deliberately delayed the filing of appeal. In that case, delay of 2984 days crept in due to improper legal advice. Relying on Concord of India Ins. Co. Limited VS Nirmala Devi (1979) 118 ITR 507 (SC), the Hon’ble jurisdictional High Court condoned the delay. 5. In yet another case in Anil Kumar Nehru and Another vs. ACIT (2017) 98 CCH 0469 BomHC, there was a delay of 1662 days in filing the appeal. Such a delay was not condoned by the Hon’ble High Court. In further appeal, condoning the delay, the Hon’ble Supreme Court in Anil Kumar Nehru vs. ACIT (2018) 103 CCH 0231 ISCC, held that : `It is a matter of record that on the identical issue raised by the appellant in respect of earlier assessment, the appeal is pending before the High Court. In these circumstances, the High Court should not have taken such a technical view of dismissing the appeal in the instant case on the ground of delay, when it has to decide the question of law between the parties in any case in respect of earlier assessment year. For this reason we set aside the order of the High Court; condone the delay for filing the appeal and direct to decide the appeal on merits.’ ITA No.934/PUN/2022 Ajay D. Tingre 4 6. Turning to the facts of the instant appeal, we find that the legal issue of passing the ex parte order dismissing the appeal at the threshold stage has merits in favour of the assessee, which requires readjudication at the end of the ld. CIT(A). As against the situation in Anil Kumar Nehru (SC) in which the question of law was yet to be decided, we are confronted with a situation in which the question of law involved in the present appeal has only one possibility of readjudication. Under these circumstances, we condone the delay in the extant case. Setting aside the impugned order, we remit the matter to the file of the ld. CIT(A) with a direction to decide the appeal afresh on merits as per law after allowing reasonable opportunity of hearing to the assessee. In such fresh proceedings, the assessee will be at liberty to lead any fresh evidence as he considers expedient for his case. 7. In the result, the appeal is allowed for statistical purposes. Order pronounced in the Open Court on 07 th February, 2023. Sd/- Sd/- ( S.S. VISWANETHRA RAVI) (R.S.SYAL) JUDICIAL MEMBER VICE PRESIDENT पुणे Pune; िदनांक Dated : 07 th February, 2023 सतीश ITA No.934/PUN/2022 Ajay D. Tingre 5 आदेश की ितिलिप अ ेिषत/Copy of the Order is forwarded to: 1. अपीलाथ / The Appellant; 2. थ / The Respondent 3. 4. 5. The CIT(A)-5, Pune The Pr.CIT-4, Pune DR, ITAT, ‘A’ Bench, Pune 6. गाड फाईल / Guard file. आदेशानुसार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune Date 1. Draft dictated on 07-02-2023 Sr.PS 2. Draft placed before author 07-02-2023 Sr.PS 3. Draft proposed & placed before the second member JM 4. Draft discussed/approved by Second Member. JM 5. Approved Draft comes to the Sr.PS/PS Sr.PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *