RAJESH KANJIBHAI KORIYA,UPLETA V. THE ITO WARD 1 (2) (2) RAJKOT, RAJKOT

ITA 165/RJT/2025

AI Insights

The case involves Rajeshbhai K Koriya, a small businessman engaged in selling tobacco products, who appealed against the orders of the Income Tax Officer and the Commissioner of Income-tax (Appeals) for the Assessment Year 2017-18. The appeal was initially delayed by 346 days due to the assessee's lack of familiarity with tax proceedings and reliance on a local consultant. The Tribunal found sufficient cause for the delay and admitted the appeal, citing the need to uphold substantial justice over technicalities. The Tribunal noted that the assessee was not given a fair opportunity to present his case at earlier stages, which warranted a fresh examination of the case by the Assessing Officer.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 360694 (ITAT-RAJKOT)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Assessment Year: 2017-2018
• Other Referred Cases: Collector, Land Acquisition vs Mst. Katiji and others
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DHEERAJ KUMR GUPTA
• Assessee Lawyers: DIPEN SUKHDIA
• Keywords: Set aside; Opportunity of being heard; Additional evidence; Principle of natural justice
• Section: 144

Judgement Text

"ITA No. 165/Rjt/2025 A.Y 17-18 Rajeshbhai K Koriya Page | 1 आयकर अपीलीय अिधकरण,राजकोट Ɋायपीठ, राजकोट। IN THE INCOME TAX APPELLATE TRIBUNAL, “SMC” RAJKOT BENCH, RAJKOT BEFORE DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No.165/RJT/2025 Ǔनधा[रण वष[/Assessment Year : 2017-18 Rajeshbhai Kanjibhai Koriya Bhalodia Street, AT: Kolki, Taluka-Upleta, Dist. Rajkot-360 490 बनाम/ Vs Income Tax Officer, Ward- 1(2)(2), Rajkot, Aayakar Bhavan, Race Course, Ring Road, Rajkot-360 001 èथायीलेखासं./जीआइआरसं./PAN/GIR No.: FKEPS 0218 D (अपीलाथȸ/Appellant) (Ĥ×यथȸ/Respondent) Ǔनधा[ǐरती कȧ ओर से/Assessee by : Shri Dipen Sukhdia, AR राजèव कȧ ओर से/Revenue by : Shri Dheeraj Kumr Gupta, Sr-DR सुनवाई कȧ तारȣख /Date of Hearing : 14/05/2025 घोषणा कȧ तारȣख /Date of Pronouncement : 22/05/2025 आदेश/Order Per Dr. Arjun Lal Saini, A.M Captioned appeal filed by the assessee, pertaining to Assessment Year 2017-18, is directed against the order passed under section 250 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) by National Faceless Appeal Centre (NFAC), Delhi/Commissioner of Income-tax (Appeals), dated 29.01.2024, which in turn arises out of an order passed by Assessing Officer u/s 144 of the Act on 09.11.2019. 2. The appeal of the assessee is barred by limitation by 346 days. The assessee has moved a petition requesting the Bench to condone the delay. The contents of the petition for condoning the delay are reproduced below: ITA No. 165/Rjt/2025 A.Y 17-18 Rajeshbhai K Koriya Page | 2 “1. That I am studied till 7th standard only and not well verse with the Income-tax proceedings at all. I am doing small business of selling tobacco items viz. gutkha, bidi, cigarette, and other pan masala items to the small pan masala vendors of different small villages around Upleta Gujarat. 2. I used to visit different villages and meet Small Pan Masala Vendors and takes orders from them and then I Purchase the said items from Vendors nr my city and deliver that items to that small Pan masala vendors situated in very remote rural village and in turn I used to received cash payments from the said vendors which I used to deposit in Bank account and when I required to make payment for my purchase I used to deposit the said cash and make payment to them. 3. During the F.Y. 2016-17 also I was doing the similar business and having turnover of around 30 lacs but I was given to understand by local person that since I am having income less then 2.5 lacs I do not need file Income tax return hence I have not filed any return of Income being small business man. 4. When I received the notice form Income tax department for depositing cash during the demonetisation period being unknown to Income tax procedure I contact local person who were doing Income tax filing work etc, and handed over said notice. 5. On Income tax Portal in my PAN registration my mobile no is mentioned and since I am not used to operate email id the email id was mentioned was that of said consultant. So whatever communication received by me I used to forward him. And on inquiry I was given to understand that he will take care of the matter. Being not very verse with the proceedings of Income tax I completely relied on him. 6. There after an ex-parte order has been passed against me. But since the email id mentioned of the said consultant he used to receive all emails etc. I only received SMS from department which I used to forward him. And without my information the said person has filed appeal against. 7. The order before CIT(A) and then CIT(A) has not admitted the appeal on the ground of non payment of advance tax. 8. I have no idea whatsoever regarding any communication of CIT(A) nor order of CIT(A) which was passed on 29.1-2024. 9. I came to know regarding the CIT(A) order when I received penalty notice from the department I have inquired with another consultant Mr. Ravi Jambudia and after verification of details he informed me that against me an order of Income Tax Officer as well as CIT(A) has been passed. Hence, this penalty notice is received by me. 10. Thereafter, he consult with Mr. Dipen Sukhadia advocate in Ahmedabad and he advise to file the ppeal before ITAT and hence we are filing this appeal. but since I have come to know regarding the order of CIT(A) considerable time has been passed and this appeal is delayed by 340 days. ITA No. 165/Rjt/2025 A.Y 17-18 Rajeshbhai K Koriya Page | 3 11. hence considering the above circumstance kindly condone the delay in the interest of justice and oblige.” 4. The Learned Counsel for the assessee, submitted that delay of 346 days had occurred because the assessee is a 7th standard educated and not verse with income tax proceedings and small businessman. The Ld. Counsel for the assessee explained that on advice of local person that assessee earned less than below Rs.2,50,000/- therefore, he needs not file income tax return, and hence he acted on his advice. Thereafter assessee received demand notice from Department for depositing cash during demonetization period than assessee contracted local tax consultant who dealing with tax matter and handed over said notice. So whatever notices received by assessee immediately forwarded to him. Thereafter assessee’s tax consultant filed appeal before Ld. CIT(A) who unadmitted appeal due to non payment of advance tax. u/s 249(4) of the Act and order was passed by Ld.CIT(A), on 29.01.2024. 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 contracted tax consultant of Ahmedabad and he advised to file appeal before Tribunal. Then assessee immediately filed appeal before Tribunal on 12.03.2025. The Learned Counsel for the assessee, submitted before the Bench that assessee has explained the sufficient reason and cause for delay of 346 days. Therefore, in the interest of justice the delay may be condoned, and the appeal may be decided on merit. 5. On the other hand, the Learned Senior DR for the Revenue opposed the prayer of the assessee for condonation of the delay. 6. I have heard both the parties on this preliminary issue. I note that the ld.CIT(A) not admitted appeal section 249(4)(b) of the Act. Besides, assessee is ITA No. 165/Rjt/2025 A.Y 17-18 Rajeshbhai K Koriya Page | 4 a small businessman and not well versed with tax matter. I am of the view that provisions of law have to be adhered strictly and that one cannot be allowed to act in leisure and make a mockery of enacted law, because law and provisions are laid down to benefit both sides of litigation. Be that as it may, I have to do justice and the Hon’ble Supreme Court in the case of Collector, Land Acquisition vs Mst. Katiji and others, reported in 167 ITR 471, (1988) SC 897) (7) observed as follows: “4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay……...” 7. When I weigh these two aspects then the side of justice becomes heavier and casts a duty on me to deliver justice. I note that the reasons given in the affidavit for condonation of delay, was convincing, and the reason would constitute reasonable and sufficient cause for the delay in filing this appeal. Considering the above facts and circumstances of the case, as narrated above, I am of the considered opinion that in the interest of justice, the delay deserves to be condoned and appeal of the assessee should be decided, on merits, in accordance with law. Accordingly, I condone the delay and admit the appeal of the assessee to adjudicate, on merit. 8. On merit, at the outset itself, the ld. Counsel for the assessee assailed the impugned order by contending that the assessee could not represent his case before Ld. CIT(A) and Ld. CIT(A) unadmitted the appeal of assess u/s 249(4) of the Act, stood vitiated on account of violation of principle of natural justice. The ld. Counsel for the assessee contended that in the interest of justice, another opportunity to contest the appeal before the Assessing Officer may be granted to the assessee. ITA No. 165/Rjt/2025 A.Y 17-18 Rajeshbhai K Koriya Page | 5 9. On the other hand, learned DR for the revenue submitted that there is no point to give second inning to the assessee and assessee`s appeal should be dismissed, as the assessee was negligent before both the lower authorities as he did not appear before both the lower authorities. 10. I have heard both the parties and note that in the assessee’s case under consideration, the assessment was carried out u/s 144 of the Act and the impugned order passed by the ld. CIT(A), is a non-speaking order, therefore, I do not wish to make any comments on the merits of the grounds raised by the assessee. As per assessee, his income was below the maximum amount which is not chargeable to tax, therefore, assessee did not file return of income and did not pay advance tax, hence provisions of section 249(4)(b) do not attract; as alleged by Ld. CIT(A). I further note that ld. CIT(A) has not decided the issue in respect of the ground raised by the assessee in Memo of Appeal, as per the mandate of provisions of section 250(6) of the Act. Hence, I am of the view that one more opportunity should be given to the assessee, to plead his case before the Assessing Officer. I note that it is settled law that principles of natural justice and fair play require that the affected party is granted sufficient opportunity of being heard to contest his case. Therefore, I deem it fit and proper to set aside the order of the ld. CIT(A) and remit the matter back to the file of the Assessing Officer to adjudicate the issue afresh on merits after giving reasonable opportunity of hearing to assessee as the assessee wanted to file additional evidence. Needless to direct that before passing the order afresh, the Assessing Officer shall allow opportunity of hearing to the assessee. The assessee is also directed to furnish all the evidence at the earliest possible of time before Assessing Officer as and when call for. In the result, ground raised by the assessee is allowed for statistical purposes. ITA No. 165/Rjt/2025 A.Y 17-18 Rajeshbhai K Koriya Page | 6 10. In the result, appeal filed by the assessee is allowed for statistical purpose. Order pronounced in the open court on 22/05/2025. Sd/- (Dr. A.L. SAINI) लेखा सदÖय/ACCOUNTANT MEMBER राजकोट /Rajkot Ǒदनांक/ Date: 22/05/2025 DKP Outsourcing Sr.P.S 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/आदेश से, सहायक पंजीकार आयकर अपीलȣय अͬधकरण, राजकोट "