Ritesh Rajkumar Somani, Surat V. Income Tax Office, Ward- 1(3)(1), Surat

ITSSA 11/SRT/2023

AI Insights

The appeals filed by Ritesh Rajkumar Somani and Manish K. Somani pertained to the Assessment Year 2014-15 and were directed against the orders passed by the Learned Commissioner of Income Tax (Appeals)-4, Surat. The primary issue was the condonation of a 174-day delay in filing the appeals, attributed to the assessees' advocate mistakenly believing that the appellate order had not been passed due to an unresolved issue regarding the supply of a satisfaction note under section 153C of the Income Tax Act, 1961. The Tribunal, after considering the circumstances and the precedent set in a similar case, decided to condone the delay and remand the case back to the CIT(A) for a fresh examination on merits.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 301734 (ITAT-SURAT)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 30-05-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-05-2023
• Assessment Year: 2014-2015
• Appeal Filed On: 12-01-2023
• Other Referred Cases: M/s. Garg Bros. Pvt. Ltd. & Others vs. DCIT
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RASESH SHAH
• Keywords: Opportunity of being heard; Assessment record; Condonation of delay; Set aside
• Section: 143(3); 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM आयकर अपील सं./IT(SS)A No. 11/SRT/2023 Ǔनधा[रण वष[/Assessment Year: (2014-15) (Physical Hearing) Ritesh Rajkumar Somani, 37, Sangam Society, Parle Point, Surat – 395001. Vs. The ITO, Ward-1(3)(1), Surat. (Assessee) (Respondent) èथायीलेखासं./जीआइआरसं./PAN/GIR No.: BCGPS4418H आयकर अपील सं./IT(SS)A Nos. 12/SRT/2023 Ǔनधा[रण वष[/Assessment Year: (2014-15) Manish Kumar Somani, 11, Keshav Park Society, Parle Point, Surat – 395001. Vs. The DCIT, Circle-1(3), Surat. (Assessee) (Respondent) èथायीलेखासं./जीआइआरसं./PAN/GIR No.: ASUPS2228L Assessee by Shri Rasesh Shah, CA Respondent by Shri Ashok B. Koli, CIT(DR) Date of Hearing 11/05/2023 Date of Pronouncement 31/05/2023 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeals filed by different Assessees, pertaining to common Assessment Year (AY) 2014-15, are directed against the separate orders passed by the Learned Commissioner of Income Tax (Appeals)-4, [in short “the ld. CIT(A)”], which in turn arises out of separate assessment orders passed by the Assessing Officer under section 143(3) r.w.s 153C of the Income Tax Act, 1961 (hereinafter referred to as “the Act”). 2. At the outset, Ld. Counsel for the assessee submitted that both the appeals filed by these different assessees are barred by limitation by one Page | 2 IT(SS)A Nos. 11 & 12/SRT/2023/AY.2014-15 Ritesh Rajkmumar Somani & Manish K. Somani hundred seventy four (174) days. The assessee moves a petition requesting the Bench to condone the delay. The contentions raised by the assessee in its petition for condonation of delay are as follows: “The assessee begs to prefer this application for condonation of delay in relation to appeal filed against the order of the Commissioner of Income Tax (Appeals)-4, Surat which is received by the assessee on 24.05.2022 by e-mail. There is a delay of 174 days in filling the appeal before Honourable Tribunal against the order passed by CIT(Appeals)-4, Surat on 19.05.2022. 2. That the appeal before the CIT(Appeals) was filed through M/s. Pradeep Singhi & Associates, Chartered Accountants on 30.01.2017. Thereafter, the assessee assigned the case to CA Harishankar Tosniwal who in turn, assigned the case to M/s Rasesh Shah & Co, Chartered Accountants to represent before the CIT(Appeals)-4, Surat passed the appellate order on 19.05.2022 which was received by the briefing Chartered Accountant, CA Harishankar Tosniwal from the assessee in time. He communicated this order vide e-mail dated 03.06.2022, for further action to M/s. Rasesh Shah & Co., Chartered Accountants who were to handle the appellate proceedings. However, the order passed by the CIT(Appeals) was lost sight of by the office of M/s Rasesh Shah & Co., Chartered Accountants as there was also another attachment in the said e-mail. 3. Rasesh Shah & Co., Chartered Accountants did not check the ITBA Portal for the order, as they were the under honest belief that the matter should have been adjourned as the satisfaction note u/s. 153C was not supplied to the assessee, in spite of request made by M/s Rasesh Shah & Co., Chartered Accountants vide their letter dated 27.07.2021. Accordingly, M/s. Rasesh Shah & Co. Chartered Accountants, repeatedly asked for the adjournments on this ground. 4. The learned CIT(Appeals)-4, Surat, granted the adjournment on this ground all the time in respect of hearings held for ten times. At the time, of hearing fixed on 21.06.2021, the assessee failed to ask for adjournment, however the reason for non-appearance before the CIT(Appeals) was the same as the Satisfaction Note could not be obtained. Again at the time of hearing on 16.11.2021, the adjournment was sought vide letter dated 11.11.2021 as the said Satisfaction Note was not received. With this letter, the assessee also enclosed the letter dated 27.07.2021 requesting for supply of the Satisfaction Note. However, the learned CIT(Appeals) mentioned that online copy of Satisfaction Note dated 27.07.2021 was submitted, although no such Satisfaction Note was supplied to the assessee. The learned CIT(Appeals) or the Assessing Officer did not supply the Satisfaction Note to the assessee. 5. It has been mentioned in the appellate order that the inspector of the CIT(Appeals) tried to contact the AR of the assessee. However, it is submitted that the office of M/s Rasesh Shah & Co., Chartered Accountants were never contacted by the said inspector. It seems that the inspector might have contacted M/s. Pradeep Singhi & Associates, Chartered Accountants who had filed the appeal before the CIT(Appeals). Page | 3 IT(SS)A Nos. 11 & 12/SRT/2023/AY.2014-15 Ritesh Rajkmumar Somani & Manish K. Somani 6. From the above, it is clear that the learned CIT(Appeals) should have adjourned the hearing as the Satisfaction Note was not supplied to the assessee. The assessee's CA Rasesh Shah & Co., Chartered Accountants, were therefore under the honest belief that the matter was adjourned and no Appellate Order was passed by the CIT(Appeals). 7. When the briefing counsel CA, Harishankar Tosniwal, personally met CA Rasesh Shah in the month of January 2023, in connection with the other appeal matters of NYA International and the group matters of Sumeet Industries Pvt. Ltd., CA Harishankar Tosniwal asked for the date of hearing of the matter before the Honourable Tribunal as he was under the bona fide belief that the appeal was already filed in time which in fact was not filed. 8. When the mistake was realized, the office of Rasesh Shah & Co., Chartered Accountants, immediately prepared the appeal the appeal and filed it on 13.01.2023 causing a delay of 174 days. 9. Accordingly, the assessee submits that the delay was caused because of the mistake of the office of M/s. Rasesh Shah & Co., Chartered Accountants who were under the honest belief that the appellate order was not passed by the CIT(Appeals) and the honest belief of the briefing counsel CA Harishankar Tosniwal that the appeal was filed in time. The case of the assessee is a meritorious one and requires consideration. If the delay is not condoned, it would cause irreparable loss to the applicant. 10. Therefore, in the facts and circumstances of the case, the applicant prays to this Honorable Income Tax Appellate Tribunal: (a) To condone the delay of 174 days in filing the Appeal No. IT(SS)A 11/SRT/2023 and to extend the time for filing the same inclusive and upto the date of filing the appeal; (b) to grant such other and further relief as deemed fit by Honourable Income Tax Appellate Tribunal.” 3. Therefore, based on the contents of the petition for condonation of delay, the Ld. Counsel argued that delay was caused because of the mistake of the Counsel of the assessee, who was under the honest belief that the appellate order was not passed by the CIT(Appeals) and the honest belief of the briefing Counsel CA Harishankar Tosniwal that the appeal was filed in time. The delay in filing the appeal is not intentional and the assessee has explained the sufficient reason for condonation of delay and facts in these both appeals are same hence the delay should be condoned for both the appeals and these both appeals may be remitted back to the file of the ld CIT(A) for fresh adjudication on merits. Page | 4 IT(SS)A Nos. 11 & 12/SRT/2023/AY.2014-15 Ritesh Rajkmumar Somani & Manish K. Somani 4. On the other hand, Learned Departmental Representative (Ld.DR) for the Revenue opposed the prayer for condonation of delay and stated that “just because of mistake of the advocate of the assessee” is not a sufficient reason to condone the delay, hence delay should not be condoned. 5. We have heard both the parties on the preliminary issue. We note that the reasons given by the assessee in his affidavit are convincing and sufficient reasons to condone the delay. We have gone through the contents of the affidavit and petition for condonation of delay and noted that the main reason for delay in filing these two appeals are because of mistake committed by the advocate of the assessee. The assessee`s advocate was under impression and honest belief that there was issue relating to supply of the satisfaction note, during the appellate proceedings, therefore the assessee was under honest belief that without considering the issue relating to satisfaction note, the Ld. CIT(A) would not pass an appellate order and Ld. CIT(A) would issue further notice to the assessee to clarify about the issue relating to satisfaction note. However, ld CIT(A) did not issue notice to the assessee to clarify about the issue relating to satisfaction note. Under these bonafide and honest belief, the advocate for the assessee did not pursue the matter further before the Ld. CIT(A), and ld CIT(A) passed the order without informing the assessee therefore the assessee did not try to obtain the order of ld CIT(A), hence delay has occurred. Therefore, we note that delay has caused because of mistake of the advocate of the assessee for which assessee cannot be penalized. Reliance is also placed on the decision of I.T.A.T., 'C' Bench, Kolkata in the case of M/s. Garg Bros. Pvt. Ltd. & Others vs. DCIT [ITA Nos.2519 to 2521/Kol/2017, order dated 18.04.2018], wherein under similar set of facts and reasons, the Hon'ble Tribunal was pleased to condone the delay of 211 days by holding as under: "3. We have heard both the parties on this preliminary issue. Having regard to the reasons given in the application for condonation of delay, we are of the considered opinion that assessee was under a bona fide belief that the impugned order of Pr. CIT was not appealable before this Tribunal since they were not advised by their Tax Consultants about this legal right. Later on, when a Senior Lawyer advised them to file an appeal, the assessees immediately took steps to file the appeals. Therefore. the delay caused. We note Page | 5 IT(SS)A Nos. 11 & 12/SRT/2023/AY.2014-15 Ritesh Rajkmumar Somani & Manish K. Somani delay was because of the wrong advice of the Tax Professional for which assessees cannot be penalized. For the ends of justice, we condone the delay and admit the appeal for hearing.” 6. 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 these appeals. The sequence of events clearly demonstrated that the assessee was pursuing the proceedings before ld CIT(A) and because of mistake of the advocate of the assessee such delay has occurred. There was no deliberateness or negligence or mala fides on the part of the assessee. 7. 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 & 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 Acquisition vs Mst. Katiji and others , reported in 167 ITR 471, (1988 SC 897) (7) observes .... “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.” 8. When we weigh these two aspects then the side of justice becomes heavier and casts a duty on us to deliver justice. Therefore, the delay in filing these appeals deserved to be condoned. The facts are common in these two appeals to condone the delay, therefore considering these facts, we condone the delay in filling these two appeals and admit these two appeals for hearing on merits. 9. On merit, Ld. Counsel submitted that during the appellate proceedings, the assessee could not submit the relevant documents and evidences before the Ld. CIT(A), therefore Ld. CIT(A) has passed an ex parte order. The ld CIT(A) did not consider the statement of facts submitted by the assessee to adjudicate the issue on merit and also did not consider the assessment records. Therefore, Page | 6 IT(SS)A Nos. 11 & 12/SRT/2023/AY.2014-15 Ritesh Rajkmumar Somani & Manish K. Somani ld Counsel prays the Bench that one more opportunity should be given to the assessee to plead his case before the Ld. CIT(A). 10. On the other hand, Ld. DR for the Revenue did not have any objection, if the matter is remitted back to the file of the Ld. CIT(A). 11. We have heard both the parties and perused the material available on record. We note that the assessee has participated in the appellate proceedings and took the adjournments. However, the assessee could not obtain the satisfaction note, therefore the assesse could not submit the written submission and other documents before the Ld. CIT(A). The Ld. CIT(A) without waiting further, has passed an ex parte order, without adjudicating the various issues on merits. We note that order passed by the Ld. CIT(A) is not in accordance with provision of section 250(6) of the Act, therefore we are of the view that one more opportunity should be given to assessee to plead his case before the Ld. CIT(A). 12. 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 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 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, both the appeals of the assessee are treated as allowed. 13. In the result, both the appeals filed by assessees are allowed for statistical purposes. Page | 7 IT(SS)A Nos. 11 & 12/SRT/2023/AY.2014-15 Ritesh Rajkmumar Somani & Manish K. Somani Registry is directed to place one copy of this order in all appeals folder / case files. Order is pronounced on 31/05/2023 in the open court. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 31/05/2023 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