RAMSINGBHAI D. VADHER,JUNAGADH V. THE INCOME TAX OFFICER. WARD-4, JUNAGADH, VERAVAL

ITA 330/RJT/2024

AI Insights

The case involves Ramsinghbhai D. Vadher, the appellant, who contested an addition of Rs. 23,32,247 made under section 56(2)(vii)(b) of the Income Tax Act by the Income Tax Officer, Ward-4, Junagadh. The appellant argued that the assessment order was bad in law and that the addition made was erroneous both in law and on facts. The appeal was initially dismissed ex-parte by the CIT(A), leading the appellant to file a rectification application, which was not addressed in a timely manner. The ITAT found that the CIT(A) had not properly served notices and had disposed of the appeal ex-parte without adequate opportunity for the appellant to present his case. Consequently, the ITAT decided to set aside the CIT(A)'s order and remand the case for a fresh hearing.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 39619 (ITAT-RAJKOT)
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 08-10-2024
• Assessment Year: 2014-2015
• Appeal Filed On: 14-05-2024
• Other Referred Cases: CIT v. Smt. Madhu, Investment Trust v. Ujagarsingh, Gujarat State Fertilizers & Chemicals Ltd. v. CIT
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHIMANYU SINGH YADAV
• Assessee Lawyers: VIMAL DESAI
• Keywords: Condonation of delay
• Section: 143(3); 250; 56(2)(vii)(b)

Judgement Text

" आयकर अपील\tय अ धकरण,राजकोट \u0011यायपीठ, राजकोट। IN THE INCOMETAXAPPELLATE TRIBUNAL, RAJKOT BENCH: RAJKOT BEFORE DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER And SHRI DINESH MOHAN SINHA, JUDICIAL MEMBER आयकर अपील सं./ITA No. 330/RJT/2024 (\u000eनधा\u0012रण वष\u0012/Assessment Year: (2014-15) Ramsinghbhai D. Vadher, Anjar, Una, Junagadh-362560 Vs. Income Tax Officer, Ward-4, Junagadh Veraval \u0016थायी लेखा सं./जीआइआरसं./PAN/GIR No.: ARVPV9722G (अपीलाथ\u001c/Appellant) (\u001d\u001eयथ\u001c/Respondent) \u000eनधा\u0012\u001fरती क! ओर से/Appellant by : Shri Vimal Desai, A.R. राज\u0016व क! ओर से/Respondent by : Shri Abhimanyu Singh Yadav, Sr. D.R. सुनवाई क! तार%ख/ Date of Hearing : 08/10/2024 घोषणा क! तार%ख/Date of Pronouncement : 08/11/2024 आदेश / O R D E R PER SHRI DINESH MOHAN SINHA, JUDICIAL MEMBER: This appeal filed by the assessee is directed against the order of Learned Commissioner of Income Tax (Appeals) [in short, “the Ld. CIT(A)”], National Faceless Appeal Centre (in short “NFAC”), Delhi order dated 16.06.2023 for assessment year 2014-15. 2. The assessee has raised the following grounds of appeal:- “1. The assessment order u/s. 143(3) of the Act is bad in law. 2. The learned Assessing Officer has erred in law as well as on facts in making an addition of Rs. 23,32,247/- u/s. 56(2)(vii)(b) of the Act and the ld. CIT(A) has also erred in law as well as on facts in confirming the same.” Page | 2 ITA No.330/RJT/2024 A Y:2014-15 3. At the outset, it is noticed that there is a delay in filing the appeal of 273 days. The assessee has filed an application for condonation of delay supported by affidavit which is as follows:- “1. The appellate order u/s. 250 consequent to the assessment order u/s. 143(3) was served on 16.06.2023. Accordingly, the appeal was required to be filed by 15.08.2023. 2. However, the appeal against such an order could not be filed within the stipulated timeframe due to the fact that the appellant has filed a rectification application against the aforesaid appellate order on 19.08.2023 as the said appeal was dismissed in an ex-parte manner by the ld. CIT(A) though the appellant filed paper book containing written submissions and supporting documents on 07.06.2023 (i.e. much before passing of the ex-parte appellate order). A copy of the said rectification application is enclosed herewith. 3. Further, the appellant had also requested for a personal hearing through video conference on 14.11.2022 as well as again on 08.06.2023 but the appellate order has been passed without granting any opportunity in this regard though the same is mandatory under Rule 12(3) of the Faceless Appeal Scheme when the assessee has demanded such an opportunity. 4. As held by the Hon'ble Allahabad High Court in the case of CIT v. Smt. Madhu (Copy of judgment enclosed), the CIT(A) has powers to recall ex- parte appellate order and pass the same on merits. Thus, the rectification application of the appellant seeking recalling of the appellate order and deciding the same on merits based on submissions filed was well within the law. 5. However, despite the lapse of more than 6 months, the CIT(A) has not dealt with the rectification application of the appellant. Thus, it clearly appears that the CIT(A) does not intend to recall the ex-parte appellate order even though it is his duty to do so for the sake of justice and fair play. 6. Hence, the appellant is now compelled to file the present appeal before the ITAT seeking condonation of delay. 7. The delay is unintentional. It happened as the appellant was exploring the remedy of the rectification against the impugned appellate order u/s. 250 of the Act. Therefore, the case of the appellant deserves to be condoned. 8. The appellant wishes to state that the Courts and Tribunals have consistently held that in the matter of condonation of delay, a pragmatic and liberal approach should be taken. The Hon'ble Supreme Court held the same in case of Investment Trust v. Ujagarsingh observing that unless malafide or negligence writ large, delay should be condoned and appeals should not be rejected on technical ground of delay and they should be ordinarily decided on merits. Page | 3 ITA No.330/RJT/2024 A Y:2014-15 9. The appellant may humbly submit that the Hon'ble Gujarat High Court has also considered this aspect of condonation of delay in case of Gujarat State Fertilizers & Chemicals Ltd. (283 ITR 149) and held that... \"The position in law is well settled that an assessee should be granted due relief where it is due without standing on technicalities and the revenue must bear the established legal position in mind while dealing with applications seeking condonation of delay. It is necessary that liberal approach is adopted in such a matter so as to ensure that substantive rights are not defeated on the basis of technicalities or limitation.\" In view of the above, I humbly request Your Honour to kindly condone the delay and admit my appeal on merits appreciating the above facts and oblige. For this act of kindness, I shall remain obliged forever. Kindly consider the above sympathetically and oblige.” 4. The ld. AR submitted that the delay is on account of perusing alternative remedy. The assessee moved an application for rectification. The AR submitted that the notices issued by the ld. CIT(A) was never served physically on the assessee and requested for an opportunity to present his before ld. CIT(A). On the contrary, the ld. DR submitted that it is a case where the assessee appeared before the authorities that assessee has purchased an immoveable property during this year amounting to Rs. 1,50,00,000/-. The ld. DR submitted that the appellant has non- co- operative attitude in spite of notice is duly served. no submission was filed before the Ld. CIT. However, the ld. DR has not objected the prayer of the assessee to present his case before the ld. CIT(A). 5. We have heard both the parties and perused the materials available on record. It is noticed that the ld. CIT(A) has issued notice for hearing but the order of the ld. CIT(A) is silent on the service of notice upon the assessee. Besides this, the ld. CIT(A) has disposed of the appeal ex-parte. Therefore, we are of the view that one more opportunity should be given to the assessee to present his before the ld. CIT(A). Therefore, we set Page | 4 ITA No.330/RJT/2024 A Y:2014-15 aside the order of ld. CIT(A) and remit the matter back to the file of ld. CIT(A) for fresh adjudication on merit after affording due opportunity of being heard to the assessee. We direct the assessee to submit the relevant evidences in support of his claim. 6. In the result, the appeal of the assessee is allowed for statistical purposes. Order is pronounced on 08/11/2024 in the Open Court. Sd/- Sd/- (DR. ARJUN LAL SAINI) (DINESH MOHAN SINHA) ACCOUNTANT MEMBER JUDICIAL MEMBER Rajkot TRUE COPY *दनांक/ Date: 08/11/2024 Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. Pr. CIT 5. DR/AR, ITAT, Rajkot 6. Guard File. By Order, Assistant Registrar/Sr. PS/PS ITAT, Rajkot 1. Date of dictation 10.10.2024 2. Date on which the typed draft is placed before the Dictating Member 10.10.2024 3. Other Member… 4. Date on which the approved draft comes to the Sr.P.S./P.S…………….. 5. Date on which the fair order is placed before the Dictating Member for pronouncement…… 6. Date on which the fair order comes back to the Sr.P.S./P.S……. 7. Date on which the file goes to the Bench Clerk………………… 8. Date on which the file goes to the Head Clerk…………………………………... 9. The date on which the file goes to the Assistant Registrar for signature on the order…………………….. 10. Date of Dispatch of the Order……………… Page | 5 ITA No.330/RJT/2024 A Y:2014-15 "