KAILASH NATH VISHWANATH SHARMA ,MUMBAI V. ASSTT. COMMISSIONER OF INCOME TAX 27(2), MUMBAI

ITA 3388/MUM/2025

AI Insights

The case involves Kailashnath Vishwanath Sharma, the Assessee, who appealed against the order of the National Faceless Appeal Center/Commissioner of Income Tax (Appeals) for the Assessment Year 2012-13. The appeal was initially delayed by 500 days due to the Assessee's and his wife's health issues, which were substantiated by medical documents. The Tribunal found the reasons for the delay credible and condoned it. The original appeal was dismissed in limine by the Commissioner, leading to the Tribunal's decision to remand the case back to the AO for a fresh assessment, considering the Assessee's inability to represent himself due to his wife's severe health condition during the original proceedings.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 712724 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Assessment Year: 2012-2013
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HEMANSHU JOSHI; LD.
• Assessee Lawyers: BHARAT L. GANDHI; FILING AN
• Keywords: Condonation of delay; Opportunity of being heard; Additional evidence; Deemed dividend
• Section: 2(22)(e)

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH “E”, MUMBAI BEFORE SHRI NARENDER KUMAR CHOUDHRY, JUDICIAL MEMBER SHRI PRABHASH SHANKAR, ACCOUNTANT MEMBER ITA No.3388/M/2025 Assessment Year: 2012-13 Kailashnath Vishwanath Sharma B-7, Devprayag, Bhakti Mandir Road, Hari Niwas, Thane, Mumbai- 400602 PAN: AMWPS4173J Vs. Asstt. Commissioner of Income Tax 27(2), Mumbai ACIT -13(3)(2), Room No. 229, 2nd floor, Aayakar Bhavan, Mumbai - 400020 (Appellant) (Respondent) Present for: Assessee by : Shri Bharat L. Gandhi Revenue by : Shri Hemanshu Joshi,Ld. Sr. D.R. Date of Hearing : 30.07.2025 Date of Pronouncement : 30.07.2025 O R D E R Per : Narender Kumar Choudhry, Judicial Member: This appeal has been preferred by the Assessee against the order dated 09.10.2023, impugned herein, passed by the National Faceless Appeal Center (NFAC)/ Ld. Commissioner of Income Tax (Appeals) (in short Ld. Commissioner) u/s 250 of the Income Tax Act, 1961 (in short ‘the Act’) for the A.Y. 2012-13. Printed from counselvise.com ITA No.3388/M/2025 Kailash Nath Vishwanath Sharma 2 2. At the outset, it is observed that there is a delay of 500 days in filing of the instant appeal, on which the Assessee by filing an application for condonation of delay along with duly sworn affidavit and relevant medical documents, has claimed as under: “1. I being an individual, I looked after my Income tax affairs and I am aware of the facts of the case and therefore, I have made this affidavit. 2. I am making this affidavit for filing before the Income Tax Appellate Tribunal in respect of A.Y. 2012-13 giving the reasons for delay in filing of an appeal and Condonation of delay. 3. I had received the order of CIT (A) of A.Y.2012-13 On. 11/10/2023. 4. I say that the delay was Mainly due to the illness of Wife who is senior and Suffering from Cancer, So I had to take care of my ailing wife and myself is a Senior Citizen suffering from oldage ailment and the sufficient cause stands Explain. Hereto annexed is the Medical reports of his Wife Mrs.Seema Sharma and Medical Insurance Mr. Kailashnath V Sharma. 5. Considering the above facts, there is a delay in filing of an appeal due to my illness and my wife' illness. 6. I therefore submit that delay in filing of an appeal before Income Tax Appellate Tribunal may be condoned. 7. There was no malafide intention nor was a deliberate act to delay the matter. 8. The Appellant had not in any way benefited by delaying the appeal 9. The Appellant therefore request that the delay may be condoned and appeal may be admitted whatever stated above is true and correct to the best of my knowledge and belief.” 3. The Ld. DR though refuted the claim of the Assessee, but not the medical documents. 4. Considering the reasons stated by the Assessee for condonation of delay along with duly sworn affidavit and Printed from counselvise.com ITA No.3388/M/2025 Kailash Nath Vishwanath Sharma 3 uncontroverted medical documents as genuine, bonafide and convincing to establish sufficient cause, we for just and proper decision of the case and substantial justice, deem it appropriate to condone the delay, thus the same is condoned. 5. Coming to the merits of the case, we observe that due to medical condition of his wife, the Assessee remained un- represented before the Ld. Commissioner, which resulted into passing of the impugned order dated 09.10.2023, whereby the Ld. Commissioner dismissed the appeal of the Assessee in limine and consequently affirmed the addition/disallowances of Rs.1,61,30,461 & Rs.41,96,954/- respectively made on account of deemed dividend u/s 2(22)(e) and disallowance u/s 41(1) of the Act. Though we are inclined to remand the instant case to the file of the Ld. Commissioner, however, considering the peculiar facts and circumstances of the case in totality as the assessment order is also more or less ex-parte and/or not based on the relevant submissions/documents, which the Assessee failed to file completely and in proper manner, due to the medical condition of his wife, thus, being an exception case, we deem it appropriate to remand the instant case to the file of the AO for decision afresh, suffice to say by affording reasonable opportunity of being heard to the Assessee and by taking into consideration the additional evidences to be filed by the Assessee as filed before us and as directed by us . 6. Suffice to say, the Assessee shall co-operate in the assessment proceedings and file the relevant submissions/documents. We further clarify that in case of subsequent default, the Assessee shall not entitled for any leniency. Printed from counselvise.com ITA No.3388/M/2025 Kailash Nath Vishwanath Sharma 4 7. In the result, the appeal of the Assessee is allowed for statistical purposes. Order pronounced in the open court on 30.07.2025. Sd/- Sd/- (PRABHASH SHANKAR) (NARENDER KUMAR CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER * Kishore, Sr. PS Copy to: The Appellant The Respondent The CIT, Concerned, Mumbai The DR Concerned Bench //True Copy// By Order Dy/Asstt. Registrar, ITAT, Mumbai. Printed from counselvise.com "