NILESH PARSOTTAMBHAI JAVIYA,SURAT V. INCOME TAX OFFICER, WARD-2, JUNAGADH, JUNAGADH

ITA 870/RJT/2024

AI Insights

The case involves an appeal by Nilesh P. Javiya against the order of the Commissioner of Income-tax (Appeals), which arose from an earlier order passed by the Assessing Officer under section 144 of the Income Tax Act, 1961. The appeal was initially filed late, and the assessee sought condonation of delay, citing non-receipt of the impugned order due to changes in his email and address. The Tribunal found merit in the assessee's reasons for the delay and condoned it. On the merits of the case, the Tribunal noted that the assessee was not given a reasonable opportunity to respond to the show cause notice issued by the Assessing Officer, leading to the decision to set aside the CIT(A)'s order and restore the matter for a fresh assessment.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 312522 (ITAT-RAJKOT)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2017-2018
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHIMANYU SINGH YADAV
• Assessee Lawyers: DIGANT KIYADA
• Keywords: Condonation of delay; Set aside; Opportunity of being heard; Reasonable cause
• Section: 144

Judgement Text

"ITA NO. 870/Rjt/2024 A.Y 17-18 Nilesh P. Javiya Page | 1 IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH(SMC), RAJKOT BEFORE DR. ARJUN LAL SAINI, AM. आयकर अपील सं./ITA No.870/RJT/2024 Ǔनधा[रण वष[/Assessment Year: (2017-18) (Physical Hearing) Nilesh Parsotambhai Javiya, A-704, Sarthi Avenue, Mota Varachha, Near ABC Circle, Surat- 394 101 Vs. Income Tax Officer, Ward-2, Junagadh, Bhootnath Chamber, Kalwa Chowk, Junagadh-362 001 èथायीलेखासं./जीआइआरसं./PAN/GIR No.:AIGPJ 3861Q (Appellant) (Respondent) Appellant by : Shri Digant Kiyada, AR Respondent by : Shri Abhimanyu Singh Yadav, Sr.DR Date of Hearing : 12/03/2025 Date of Pronouncement : 28/04/2025 आदेश / O R D E R Per,Dr. ARJUNLAL SAINI AM; Captioned appeal filed by the assessee, pertaining to Assessment Year 2017-18, is directed against order passed by Learned Commissioner of Income- tax (Appeals)/ National Faceless Appeal Centre (NFAC), Delhi, [(in short “the Ld.CIT(A)”] vide order dated 21.11.2023, which in turn arises out of an order passed by the Assessing Officer, dated 18.11.2019, u/s 144 of the Income Tax Act, 1961 (in short “the Act”). 2. The appeal filed by the assessee, before the Tribunal, is barred by limitation of 305 days. The assessee moved a petition for condonation of delay requesting the Bench to condone the delay. The Ld. Counsel for the assessee explained the reasons for delay, stating that impugned order passed by Ld.CIT(A), on 21.11.2023. However, this appeal is filed on 12.11.2024, before this Tribunal. The Ld. Counsel for the assessee, submits that delay in filing the ITA NO. 870/Rjt/2024 A.Y 17-18 Nilesh P. Javiya Page | 2 appeal is neither intentional nor deliberate. In fact, the impugned order was not served upon the assessee either in physical form or by way of e-mail. At the time of filing appeal, the assessee for the purpose of service of notice of hearing has given e-mail id. of [e-mail] in Form-35. Thereafter assessee left Junagadh and shifted to Surat City and changed his consultant. The consultant of Surat changed correspondence address, and also emil-id in portal of income tax department, and updated contract details mentioning e-mail ID [e-mail]. Then, after, assessee received penalty notice on the updated email- ID on [e-mail], then only assessee came to know that order was passed by the CIT (Appeal). When assessee approached his CA, to know about the status of his appeal, and on checking Income tax e-filing portal, his CA came to know about dismissal of appeal. Then assessee immediately filed appeal before Tribunal on 12.11.2024. On further checking ITBA system, it was found that notice of hearing of appeal was sent at the e-mail of previous consultant. The said previous e-mail address does not belong to the assessee or his current CA, therefore, neither the assessee was aware nor there was any occasions for compliance before ld CIT(A). Resultantly, the Ld.CIT(A) passed ex parte order. 3. The Ld. Counsel of the assessee further submitted that there is reasonable cause for not filing appeal within 60 days of passing the impugned order, before Tribunal, therefore, delay should be condoned. On the other hand, learned DR for the revenue, submitted that such delay should not be condoned on such flimsy grounds and appeal of the assessee should be dismissed. 4. I have heard both the parties. First, I am considering the preliminary issue of condonation of delay. On perusal of Form-35 [Appeal form before CIT(A)], I find that assessee while filing appeal has given e-mail id. [e-mail] and subsequently changed address to Surat and changed ITA NO. 870/Rjt/2024 A.Y 17-18 Nilesh P. Javiya Page | 3 his e-mail id [e-mail]. and no notice was sent or served through such e-mail address. Thus, I find merit in the submission of Ld. Counsel of the assessee about reasonable cause for non-compliance before Ld.CIT(A) as well as non-service of impugned order passed by Ld. CIT(A), which ultimately resulted in delay in filing appeal before Tribunal. I note that the 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 this appeal. Having heard both the parties and after having gone through the affidavit as well the delay condonation, application, I am of the considered opinion that in the interest of justice, the delay deserves to be condoned. I, accordingly, condone the delay. 5. On merit, the Ld. Counsel for the assessee submits that assessment order was also passed without giving fair and reasonable opportunity of being heard to assessee. The Assessing Officer issued show cause notice seeking certain details. Thus, no reasonable time was allowed to assessee. The Ld. Counsel of the assessee submits that matter may be restored to the file of Assessing Officer with the direction to allow fair and reasonable opportunities to assessee and pass order afresh in accordance with law. He undertakes on behalf of the assessee to be more vigilant in future in making timely compliance. 6. On the other hand, Ld. Senior Departmental Representative (Ld. Sr-DR) for the Revenue submits that Assessing Officer has given ample opportunities to the assessee as reflected in the show cause notice dated 11.10.2019 itself, but the assessee has not made any compliance. In case, the Bench is of the view that assessee deserves any more opportunity, the matter may be restored back to the file of Ld.CIT(A). 7. I find that during assessment proceedings, Assessing Officer issued show cause notice on 11.10.2019 to furnish complete documentary evidence by ITA NO. 870/Rjt/2024 A.Y 17-18 Nilesh P. Javiya Page | 4 24.10.2019 this is very short period. The Assessing Officer passed assessment order on 18.11.2019 itself. In the show cause notice issued on 11.10.2019, the Assessing Officer asked about details of cash deposit of Rs.11,00,000/- and such details was sought for the first time in show cause notice issued on 11.10.2019. In my considered view, no reasonable and fair opportunities were allowed by Assessing Officer. The order of Assessing Officer was upheld by Ld.CIT(A) in ex parte proceedings. Thus, considering the overall facts and circumstances of the case, I instead of going through into further merit or demerits of the case, I deem it appropriate to set aside the order of Ld. CIT(A) and restore the grounds of appeal raised by assessee to the file of Assessing Office to pass assessment order afresh. Needless to direct that the Assessing Officer shall grant opportunity of being heard to assessee. The assessee is also directed to provide all evidences and information again to the Assessing Officer as and when required. In the result, grounds of appeal raised by assessee are treated allowed for statistical purposes. 8. In the result, appeal of assessee is allowed for statistical purposes. Order pronounced in the open court on 28/04/2025. Sd/- (Dr. A.L. SAINI) लेखा सदÖय/ACCOUNTANT MEMBER राजकोट /Rajkot िदनांक/ Date: 28/04/2025 DKP Outsourcing Sr.P.S ITA NO. 870/Rjt/2024 A.Y 17-18 Nilesh P. Javiya Page | 5 आदेश कì ÿितिलिप अúेिषत/ Copy of the order forwarded to :  अपीलाथê/ The Appellant  ÿÂयथê/ The Respondent  आयकर आयुĉ/ CIT  आयकर आयुĉ(अपील)/ The CIT(A)  िवभागीय ÿितिनिध, आयकर अपीलीय आिधकरण, राजकोट/ DR, ITAT, RAJKOT  गाडªफाईल/ Guard File // True Copy // By order/आदेशसे , सहायक पंजीकार आयकर अपीलीय अिधकरण ,राजकोट "