PRIYALBEN NAINESHBHAI VORA,AKSHAR JYOT APPARTMENT V. INCOME TAX OFFICER, WARD 1(3)(8), AAYAKAR BHAWAN

ITA 544/SRT/2024

AI Insights

The case involves three appeals filed by different family members of the Vora group against the orders of the Commissioner of Income-tax (Appeals) for the assessment year 2011-12. The appeals were dismissed ex parte by the CIT(A) due to non-compliance, as the assessees did not receive the notices. The Tribunal found that the notices were not properly served, leading to the condonation of the delays in filing the appeals. The Tribunal noted that the CIT(A) did not adjudicate on the merits as required under section 250(6) of the Income-tax Act, 1961, and thus restored the cases for a decision on merits.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 29795 (ITAT-SURAT)
• Duration Of Justice: 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Next Hearing Date: 09-10-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 09-05-2024
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKESH JAIN
• Assessee Lawyers: MEHUL SHAH
• Keywords: Condonation of delay; Unexplained investment
• Section: 250; 68

Judgement Text

" आयकर अपीलीय अिधकरण, सूरत Æयायपीठ, सूरत IN THE INCOME-TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER & SHRI BIJAYANANDA PRUSETH, ACCOUNTANT MEMBER आयकर अपील सं./ITA No.544/SRT/2024 िनधाªरण वषª /Assessment Year: (2011-12) (Physical court hearing) Priyalben Naineshbhai Vora UG/03 Akshar Jyot Appartment, Nr. Bulka Bhawan School, Adajan, Surat-395009 बनाम vs. Income Tax Officer Ward-1(3)(8), Surat, èथायीलेखासं./जीआइआरसं./PAN/GIR No: AGFPV 6913 J (अपीलाथŎ/Appellant) (ŮȑथŎ /Respondent) आयकर अपील सं./ITA Nos.545/SRT/2024 िनधाªरण वषª /Assessment Year: (2011-12) Nainesh Natwarlal Vora Akshar Jyot Society, Nr. Bhulka Bhawan School, Adajan, Surat-395003 बनाम vs. Income Tax Officer Ward-1(3)(8), Surat, èथायीलेखासं./जीआइआरसं./PAN/GIR No: AGFPV 1551 L (अपीलाथŎ/Appellant) (ŮȑथŎ /Respondent) आयकर अपील सं./ITA Nos.546/SRT/2024 िनधाªरण वषª /Assessment Year: (2011-12) Kentankumar Natwarlal Vora Akshar Jyot Society, Nr. Bhulka Bhawan School, Adajan, Surat-395003 बनाम vs. Income Tax Officer Ward-1(3)(7), Surat, èथायीलेखासं./जीआइआरसं./PAN/GIR No: ACKPV 4128 Q (अपीलाथŎ/Appellant) (ŮȑथŎ /Respondent) िनधाŊįरती की ओर से /Assessee by Shri Mehul Shah, CA राजˢ की ओर से /Revenue by Shri Mukesh Jain, Sr-DR अपील पंजीकरण/Appeal instituted on 10/05/2024 2 ITA No.544-546/SRT/2024 /AY.11-12 Vora Group सुनवाई की तारीख/Date of Hearing 09/10/2024 उद ्घोषणा की तारीख/Date of Pronouncement 28/10/2024 आदेश/Order PER BIJAYANANDA PRUSETH, AM: These three appeals have been filed by different assessees, who are family members. The appeals emanate from the orders passed under section 250 of the Income-tax Act, 1961 (in short, ‘the Act’) by the Commissioner of Income-tax (Appeals) / National Faceless Appeal Centre, Delhi [in short, ‘CIT(A)’], vide separate orders, dated 25.05.2023, 15.03.2023 and 17.02.2023, for assessment year (AY) 2011-12. All the appeals were dismissed by the CIT(A) in ex parte orders. Since the facts in all the appeals are similar and the assessees have raised similar grounds of appeal, with the consent of the parties, all the appeals are clubbed and heard together and decided by the consolidated order for sake of convenience and brevity. The only difference is variation of the amount of “protective addition”. For appreciation of facts, appeal in ITA No.544/SRT/2024 is treated as “lead” case. 2. Ld. Authorized Representative (Ld.AR) for the assessee submits that there is delay of 290 days in filing appeal before Tribunal. At the time of filing appeal before First Appellate Authority, the assessee in Form-35A has specifically mentioned “No” against column “service of notice / communication to be sent through e-mail”. The consultant of assessee at the time of filing appeal has created e-mail id. in the name of individual assessee, which were managed by his consultant firm. At the relevant time, one e-mail 3 ITA No.544-546/SRT/2024 /AY.11-12 Vora Group id. was not allowed to be used for more than ten cases; therefore, the consultant created several e-mail ids. But fact remained that while filing relevant column, the assessee had chosen “No” against the column for “service of notice / communication etc.”. The Ld. AR submits that no physical notice was received by assessee and therefore, no compliance could be made. Since “protective addition” was made in the hands of assessee, there was no occasion for service of demand notice on the assessee. When the assessee checked the ITBA portal for knowing the status of her appeal through Shri Paras Vora, CA, she came to know that appeal of assessee has already been dismissed in an ex parte manner on 25.05.2023. On further enquiry on ITBA portal, the assessee came to know that in fact no notice, even on the e-mail mentioned by assessee in Form-35 while filing appeal, was sent. The notice was sent at the e-mail of [e-mail] and no physical copy or soft copy was ever served upon the assessee. Copy of screen shot of ITBA portal is filed to support the claim. Thus, the assessee was prevented by sufficient cause in making compliance before Ld. CIT(A) and also in filing appeal before Tribunal within prescribed time. The Ld. AR of the assessee submits that the delay in filing appeal before Tribunal was neither intentional nor deliberate but was due to reasons which was beyond her control. The assessee has filed an affidavit duly sworn by her by narrating all above facts. The Ld. AR submitted that assessee has a good case on merit and is likely to succeed if one more opportunity is given to assessee. The Ld. AR undertakes on behalf of assessee 4 ITA No.544-546/SRT/2024 /AY.11-12 Vora Group to be more vigilant in future in making timely compliance. He further submits that CIT(A) has not passed order on merit and, therefore, the matter may be restored to the file of CIT(A) to decide appeal on merit. In other two appeals, the assessee has raised similar plea for condonation of delay of 361 and 387 days and prayed for restoring the maters back to the file of CIT(A) for deciding appeals on merit. 3. On the other hand, Ld. Senior Departmental Representative (Ld.Sr-DR) for the Revenue after going through the content of affidavits and proof/ITBA portal showing the screen shot and sending of notices at different e-mail i.d would submit that Bench may take appropriate view and in case the delays are condoned, the matter may be restored back to the file of Ld.CIT(A) with the direction to assessee to be more vigilant in making timely compliance before lower authorities. 4. We have considered the rival submission of the parties and have gone through the orders of lower authorities carefully. Firstly, we would consider the plea of condonation of delay. Considering the detailed submission made by Ld.AR discussed above, we find that notice u/s 250 issued by the CIT(A) for fixing the hearing of appeal and seeking the submissions of assessee, was actually not served on the assessee. Rather, it was sent on a different e-mail, id. other than e-mail id. given in Form-35A. Since addition was on protective basis, no notice of demand was served on assessee. Thus, considering the peculiar facts and circumstances of the case, we find that assessee has shown 5 ITA No.544-546/SRT/2024 /AY.11-12 Vora Group reasonable and sufficient cause in not making compliance before CIT(A) and in filing belated appeals before Tribunal. Thus, delay in filing all the appeals are condoned. 5. Now coming to the merits of the case. We find that Assessing Officer while passing assessment order made addition u/s 68 of the Act on account of unexplained investment on “protective basis” and substantive additions were made in case of “Happy Home Builder Group”. The CIT(A) confirmed the addition of AO since no compliance was made. We, however, also find that the order of CIT(A) is not in accordance with provisions of section 250(6) of the Act. Section 250(6) of the Act mandates that the Ld. CIT(A) while deciding the appeal is required to pass order on points for determination (grounds of appeals), the decision thereon and reasons for the decision. As the grounds of appeal raised by assessee before CIT(A) was not adjudicated on merit, the mater is restored back to the file of CIT(A) to decide all the grounds of appeal on merit in accordance with law. The CIT(A) shall grant reasonable opportunity of hearing to the assessee. The assessee is also directed to be more vigilant and file written submission in time, as and when the date of hearing is fixed and also provide all necessary evidences and information without seeking adjournment bereft of any valid reasons. Accordingly, the grounds of appeal by assessee is allowed for statistical purpose. 6. In the result, appeal filed by assessee in ITA No.544/SRT/2024 is allowed for statistical purposes. 6 ITA No.544-546/SRT/2024 /AY.11-12 Vora Group ITA No.545 and 546/SRT/2024 (AY.12-13) 7. As recorded above, the assessees in these appeals have raised similar grounds for condonation of delay as raised in ITA No.544/Srt/202. We have already allowed request for condonation of delay in the above appeals. For the same reason, the delay in both these appeals are condoned. Considering the facts that we have restored the appeal in ITA No.544/Srt/2024 on similar set of facts, following the principles of consistency, these appeals are also restored back to the file of CIT(A) with similar direction. Accordingly, both appeals are also allowed for statistical purpose. 8. In the result, appeals ITA Nos.545 and 546/SRT/2024 are allowed for statistical purposes. 9. In combined result, all three appeals of the assessees are allowed for statistical purposes. Registry is directed to place one copy of this order in all appeals folder / case file(s). Order is pronounced on 28/10/2024 in the open court. Sd/- Sd/- (PAWAN SINGH) (BIJAYANANDA PRUSETH) Æयाियक सदÖय/ Judicial Member लेखा सदÖय/ Accountant Member सूरत /Surat Ǒदनांक/ Date: 28/10/2024 Dkp Outsourcing Sr.P.S* 7 ITA No.544-546/SRT/2024 /AY.11-12 Vora Group 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, सूरत/ DR, ITAT, SURAT  गाडª फाईल/ Guard File By order/आदेश से, // True Copy // सहायक पंजीकार आयकर अपीलȣय अͬधकरण, सूरत "