JAGDISHBHAI KARAMSHIBHAI BODRA,SURAT V. DY. CIT, CIRCLE 1(1)(1), SURAT

ITA 751/SRT/2024

AI Insights

The case involves two appeals by Jagadishbhai Karamshibhai Bodra against the orders of the Commissioner of Income Tax (Appeals), which were not admitted due to delays in filing. The assessee faced significant personal and financial turmoil, including allegations of bank fraud and the subsequent attachment of his office by SBI, which hindered his ability to respond to notices and pursue legal remedies in a timely manner. The Tribunal considered these circumstances and decided to remit the cases back to the Assessing Officer for a fresh assessment, acknowledging the assessee's inability to meet the original deadlines due to circumstances beyond his control.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 40254 (ITAT-SURAT)
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Next Hearing Date: 19-11-2024
• Assessment Year: 2017-2018
• Appeal Filed On: 09-07-2024
• Other Referred Cases: DCM Ltd. vs. State of Tamil Nadu, Madhu Dadha vs. ACIT, Collector, Land Acquisition vs. Mst. Katiji
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKESH JAIN
• Assessee Lawyers: SURESH K. KABRA
• Keywords: Condonation of delay; Set aside; Opportunity of being heard
• Section: 147; 148; 142(1); 143(2); 250; 264; 246A

Judgement Text

" IN THE INCOME-TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI BIJAYANANDA PRUSETH, ACCOUNTANT MEMBER आयकर अपील सं./ITA Nos.750 & 751/SRT/2024 Assessment Year: (2016-17 & 2017-18) (Physical Hearing) Jagadishbhai Karamshibhai Bodra, 701, River Residency, Athwalines, Surat – 395001 Vs. The DCIT, Circle – 1(1)(1), Surat èथायीलेखासं./जीआइआरसं./PAN/GIR No: ABYPB6267B (Appellant) (Respondent) Appellant by Shri Suresh K. Kabra, CA Respondent by Shri Mukesh Jain, Sr. DR Date of Hearing 19/11/2024 Date of Pronouncement 20/11/2024 आदेश / O R D E R PER BIJAYANANDA PRUSETH, AM: These two appeals by the assessee emanate from the orders passed under section 250 of the Income-tax Act, 1961 (in short, ‘the Act’) dated 05.06.2024 by the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [in short, ‘CIT(A)’] for the assessment years (AY) 2016-17 and 2017-18. Since the facts are similar, with consent of both parties these appeals are heard together and decided by a common order for sake of convenience. 2. The grounds of appeal raised by the assessee in ITA No.750/SRT/2024 are as under: “1. The Ld. CIT(A) has erred and was not just and proper on the facts of the case and in law in considering the APPEAL as DELAYED and not admitting the same. 2 ITA Nos.750 & 751/SRT/2024/AY.2016-17 & 2017-18 Jagdishbhai Karamshibhai Bodra 2. PRAYER 2.1 The APPEAL may be directed to be admitted for consideration. 2.2 Personal hearing may be granted. 2.3 Any other relief that your honours may deed fit may be granted. 3. the assessee craves leave to add, amend, modify, alter or delete any of the grounds at the time of hearing.” 3. For AY.2017-18, the appellant has raised identical grounds of appeal in ITA No.751/SRT/2024. ITA No.750/SRT/2024: 4. Brief facts of the case are that the assessee had filed return of income for the AY.2016-17 on 24.03.2018, declaring total income at Rs.6,90,190/-. The assessee, however, did not file ITR in response to notice u/s 148 of the Act dated 21.07.2022. The Assessing Officer (in short, ‘AO’) found that a case had been registered against the assessee for bank fraud amounting to Rs.128 crores. The assessee had forged signatures of his erstwhile partners and obtained a loan from SBI. Thereafter, SBI Asset Management Branch, Ahmedabad issued a public notice that possession of properties of Raj Infra- space has been taken over by the SBI. As per information, an income of Rs.1,05,43,428/-, chargeable to tax, had escaped assessment in the hands of the assessee for the year under consideration. Various notices u/s 148, 143(2) and 142(1) were issued to the assessee. Details of such notices are at para 2 of the assessment order. Despite issuance of notices, assessee neither respond nor file any documents and explanation. Therefore, AO passed order u/s 147 r.w.s. 144 r.w.s. 144B of the Act by adding Rs.1,05,43,428/-. The total income was determined at Rs.1,13,93,618/-. 3 ITA Nos.750 & 751/SRT/2024/AY.2016-17 & 2017-18 Jagdishbhai Karamshibhai Bodra 5. Aggrieved by the order of AO, the assessee filed this appeal before the CIT(A). The CIT(A) issued notice u/s 250 dated 23.01.2024, 22.05.2024 and 28.05.2024. However, no submission was made by the assessee. The appeal was, therefore, disposed of after considering the assessment order, statement of facts and position of law as discussed in para 2 to 5.7 of the appellate order. The CIT(A) found that there was delay of 23 days in filing the appeal. He noted that no application for condonation was filed along with Form No.35. He, therefore, held that there is no case made out for condonation of delay. The assessee is required to explain each days’ delay after the last date of limitation. The CIT(A) observed that it is a clear case of negligence for non-pursuing available remedy in time. He relied on the decision in case of DCM Ltd. vs. State of Tamil Nadu, (1995) 96 STC 263, 264 (Mad.), Madhu Dadha vs. ACIT, 317 ITR 458 (Mad.) and Collector, Land Acquisition vs. Mst. Katiji, 167 ITR 471 (SC) and held that no case has been made out by the assessee for existence of sufficient cause for delay of 23 days in filing appeal. He, therefore, did not admit appeal of the assessee and dismissed the same in limine. 6. Aggrieved by the order of CIT(A), the assessee filed appeal before the Tribunal. The Learned Authorized Representative (Ld. AR) of the assessee submitted that the assessee was under tremendous financial and mental stress during the period under consideration. His office premises was closed and was in fact attached by the SBI. Since the office was in possession of the Bank, no staff of the assessee was working and it was not possible to receive the notices and communicate with the Income-tax Department. The assessee actually 4 ITA Nos.750 & 751/SRT/2024/AY.2016-17 & 2017-18 Jagdishbhai Karamshibhai Bodra received the order of AO on 17.04.2023 and filed the appeal in time on 15.05.2023. If the date of assessment order i.e., 24.03.2023 is considered, there is delay of 23 days in filing appeal. It was further submitted that the delay was neither deliberate nor intentional and it was due to circumstances beyond the control of the assessee. Hence, the Ld. AR requested to condone the delay and set aside the matter to the AO to make the assessment on merit in accordance with law. 7. On the other hand, Learned Senior Departmental Representative (Ld. Sr. DR) of the Revenue supported the order of lower authorities. The Ld. Sr. DR did not have any serious objection if the matter is remitted back to the file of AO. 8. We have heard both the parties and perused the materials available on record. The CIT(A) has refused to condone the delay and dismissed the appeal in limine without discussing the appeal on merit. An assessee may appeal to the CIT(A) against any appealable order detailed in section 246A of the Act. As per sub-section (2) of section 249 of the Act, the appeal shall be presented within 30 days from the date of service of the notice of demand relating to the assessment or penalty. However, sub-section (3) of section 249 of the Act permits the CIT(A) to admit an appeal after expiration of the said period if he is satisfied that the appellant had sufficient cause for not presenting the appeal within prescribed time limit. The notion of condonation of delay encompasses the discretionary power of an appellate authority to extend the prescribed time limit for filing an appeal or an application. It pertains to the mechanism by which the said appellate authority may grant clemency for delay in submitting 5 ITA Nos.750 & 751/SRT/2024/AY.2016-17 & 2017-18 Jagdishbhai Karamshibhai Bodra an appeal. The discretion to condone the delay has to be exercised judicially based upon the facts and circumstances of the case. It has been held in a number of cases that the authority exercising such power should be judicious and be not guided by technical rules alone. In the present case, we find that the assessee was displaced from his office due to attachment of office on account of some purported fraud committed by him. As the assessee and his staffs were not working in the address given in the ITR, it was possible that he did not receive the order in time and actually received the order late by 3 weeks, as contended by the Ld. AR. However, he has filed the appeal within 30 days from receipt of the order. Considering the submission of the assessee and that the delay was rather small of 23 days, we are of the considered view that there was sufficient cause for not presenting the appeal to the CIT(A) within the prescribed period of 30 days. We, therefore, set aside the order of CIT(A) and remit the issue back to the file of AO for fresh assessment after giving reasonable and sufficient opportunity of being heard to the assessee. The assessee is directed to be vigilant and furnish explanation and details as required by the AO without seeking adjournment bereft of valid reason. 9. In the result, the appeal of the assessee in ITA No.750/SRT/2024 is allowed for statistical purpose. ITA No.751/SRT/2024: 10. As stated earlier, assessee has taken similar grounds of appeal for AY.2017-18. The CIT(A) has also dismissed the appeal in limine by not admitting the appeal, which was filed late by 175 days. The reasons given by the CIT(A) 6 ITA Nos.750 & 751/SRT/2024/AY.2016-17 & 2017-18 Jagdishbhai Karamshibhai Bodra are similar to those for AY.2016-17, as discussed above. The Ld. AR has also advanced the same reasons as was done for AY.2016-17. In fact, in Form No.35, the assessee has stated that he had closed down his business and there was no staff to assist in preparing the old data available in the computer system. After considering the entirety of the facts, we have set aside the order of CIT(A) in the appeal in ITA No.750/SRT/2024 for AY.2016-17. Following the same reasons, the order of CIT(A) is for AY.2017-18 is also set aside and the issue is remitted back to the file of AO for fresh assessment after giving reasonable and sufficient opportunity of hearing to assessee. 11. In the result, the appeal of assessee in ITA No.751/SRT/2024 is allowed for statistical purpose. 12. In the combined result, both the appeals of the assessee are allowed for statistical purpose. Order is pronounced in the open court on 20/11/2024. Sd/- Sd/- (PAWAN SINGH) (BIJAYANANDA PRUSETH) JUDICIAL MEMBER ACCOUNTANT MEMBER Surat Ǒदनांक/ Date: 20/11/2024 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 "