NADEEM KHAN,JODHPUR V. CIRCLE (INTL TAX), JAIPUR

MA 48/JPR/2023

AI Insights

The case involves Nadeem Khan, the appellant, who filed a Miscellaneous Application under section 254(2) of the Income Tax Act against an ex-parte order dismissing his appeal on the grounds of limitation. The appellant argued that he did not receive subsequent dates of hearing after filing an adjournment application, leading to an ex-parte decision. Additionally, he was out of India during the relevant period and could not collect necessary documents due to the COVID-19 pandemic. The ITAT found that the delay in filing the appeal was justified due to the appellant's NRI status and the pandemic, leading to the recall of the ex-parte order and remanding the case for a decision on merits.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 315388 (ITAT-JAIPUR)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-05-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2017-2018
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SWAPNIL PARIHAR
• Keywords: Opportunity of being heard
• Section: 144; 56

Judgement Text

" vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”B” JAIPUR Mk0 ,l- lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM MA No. 48/JP/2023 (Arising out of vk;dj vihy la- IT(IT)A No. 01/JP/2023) fu/kZkj.k o\"kZ@Assessment Year : 2017-18 Nadeem Khan 128 Near Cheer Ghar Maszid, Kamla Nehru Nagar, Chposani Road, Jodhpur cuke Vs. CIT (Intl. Tax) Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: BOJPK8480C vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : None jktLo dh vksj ls@ Revenue by : Mrs. Swapnil Parihar, JCIT-DR a lquokbZ dh rkjh[k@ Date of Hearing : 19/02/2025 mn?kks\"k.kk dh rkjh[k@Date of Pronouncement : 13/05/2025 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM The present Miscellaneous Application has been filed by the assessee u/s 254(2) of the Act against the order of ITAT, Jaipur Benches, Jaipur in IT(IT) A No. 01/JP/2023 dated 07/06/2023 praying therein following reasons to suitably modified or recalled of its order: “In connection with the above, we have to submit that an ex-parte order has been passed by the Hon'ble Tribunal in the above case on 07-06- MA No. 48/JP/2023 Nadeem Khan vs. Circle(Int. Tax) 2 2023 dismissing the appeal of the appellant on the ground of limitation. We pray the Hon'ble Tribunal to restore the appeal with the following prayer: 1. That the on the first date of hearing on 21-02-2023, the appellant had filed application for adjournment of hearing. However, the appellant did not receive subsequent dates of hearing. Consequently, the appeal has been decided ex-parte without hearing the appellant and the same has been dismissed on the ground of bar of limitation. 2. The appellant is a bona fide assessee having no intention to evade tax. The Assessment order was passed ex-parte without hearing the case of the appellant. The first appeal of the appellant has also been decided ex-parte. 3. That at the time of passing of order by the Id. CIT(A), the appellant was out of India. Consequently, he could not collect requisite information and documents for filing of appeal to the Hon'ble Tribunal within the prescribed time limit. We furnish the requisite evidences in support of our above submission. The delay in filing of appeal was due to the reasons beyond the control of the appellant. 4. That dismissal of the appeal merely on the ground of the limitation would cause grave injustice to the appellant as the Income-tax Department would recover huge demand tax, interest and consequential penalty. 5. Since the appellant did not come to know about the date of hearing of the appeal, he could not be produce relevant documents and evidences in support of his case before the Hon’ble Tribunal. 6. In view of the above, we pray the Hon’ble Tribunal to restore the above appeal and grant one more opportunity to the appellant to produce relevant documents and evidences in support of his case.” 2. As it is evident from the application filed by the assessee dated 18.12.2025 therein the assessee submitted that at the time of passing of order by ld. CIT(A). The assessee was out of India i.e. UAE and in support of that fact he filed the copy of passport. MA No. 48/JP/2023 Nadeem Khan vs. Circle(Int. Tax) 3 Since then the assessee was NRI, the order was passed in his absence after passing of that order, there was Covid-19 period and therefore, the assessee could not collect the certified copy of the order of ld. CIT(A). The assessee filed the appeal belatedly. Record reveals that the order of ld. CIT(A) passed on 23.08.2021 which obvious was starting period of Covid-19. The assessee filed the appeal on 23rd January, 2023 and therefore, the assessee being NRI and was out of India as it is evident from the copy of passport placed on record. Therefore, in the interest of justice, the delay could not be explained by the assessee as the appeal of the assessee was decided ex-parte vide order dated 07.06.2023 by the ITAT, when this matter was listed before hearing even the assessee remained absent being NRI. 3. The ld. DR relied on the order of ITAT and submitted that the appeal of the assessee has rightly been dismissed and thereby she supported the order of the ITAT. 4. We have heard ld. DR and perused the record. The bench noted that the order of ld. CIT(A) passed on 23.08.2021 which obvious was starting period of Covid-19. The assessee filed the appeal on 23rd January 2023 and therefore, the assessee being NRI and was out of India as it is evident from the copy of passport MA No. 48/JP/2023 Nadeem Khan vs. Circle(Int. Tax) 4 placed on record we are of the view that the delay in filling the appeal is required to be condone as the assessee was prevented to file the appeal in time because of he being out of India and after passage of the impugned order there was outbreak of covid-19. Therefore, in the interest of justice, the delay should be condone. The bench also noted that the appeal of the assessee was decided ex-parte vide order dated 07.06.2023 by the ITAT, when this matter was listed before hearing even the assessee remained absent being NRI. Considering the overall factum of the case the bench is of the considered view that lis between the parties has to be decided on merits so that nobody’s rights could be scuttled down without providing the opportunity of being heard to the assessee and therefore, we recall the exparte order passed by the ITAT on 07.06.2023. 5. Now after recalling the order the matter in ITA no. IT(IT)/01/JP/2023 is required to be decided based on the merits of the case. 6. Records reveal that in the present case, the assessment order was framed on 26.12. 2019 as per provisions of section 144 of the Act thereby making the assessment at Rs. 39,14,223/- ex- party under the provisions of section 69A & 56 of the Act. When MA No. 48/JP/2023 Nadeem Khan vs. Circle(Int. Tax) 5 the matter challenged before ld. CIT(A), the assessee could not represent he being NRI and therefore, that order also passed ex- parte. 7. Heard, ld. DR perused the material available on record. The bench notes that lis between the parties has to be decided on merits so that nobody’s rights could be scuttled down without providing an opportunity of being heard to the assessee. Thus, we consider the prayer of the assessee. Considering the factum of the case we deem it fit to remand the matter to the file of the ld. AO who will consider the factual aspect of the matter and charge the correct income in hands of the assessee if so to be taxed in accordance with law after affording due opportunity to the assessee. However, the assessee will not seek any adjournment on frivolous ground and remain cooperative during proceedings before the ld. AO. 8. Before parting, we may make it clear that our decision to restore the matter back to the file of the ld. AO shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by the ld. AO independently in accordance with law. MA No. 48/JP/2023 Nadeem Khan vs. Circle(Int. Tax) 6 In the light of the above discussion, we allow the Miscellaneous Application filed by the assessee and after recalling the said ex-party order of ITAT in IT(IT) A No. 01/JP/2023 dated 07/06/2023, we consider the appeal of the assessee allowed for statistical purpose based on the discussion so recorded here in above. In the result, Miscellaneous Application as well as appeal of the assessee are allowed as indicated herein above. Order pronounced in the open Court on 13/05/2025 Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 13/05/2025 *Ganesh Kumar, Sr. PS vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. The Appellant- Sh. Nadeem Khan, Jodhpur 2. izR;FkhZ@ The Respondent- Circle (Int.Tax), Jaipur 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZ QkbZy@ Guard File (MA No. 48/JP/2023) vkns'kkuqlkj@ By order lgk;d iathdkj@Asst. Registrar "