SHRI KETAN RAMESHBHAI GOSAI,JETPUR, DIST. RAJKOT V. THE ITO, WARD-1 (2) (3), RAJKOT

ITA 438/RJT/2023

AI Insights

The case involves Ketan Rameshpuri Gosai, the appellant, contesting an order from the Learned Commissioner of Income Tax (Appeals), which arose from an assessment order passed by the Assessing Officer under section 144 of the Income Tax Act, 1961. The appeal for the Assessment Year 2010-11 was initially barred by limitation, but the Tribunal accepted the explanation of the advocate's mistake as a sufficient cause for the delay. The Tribunal noted that the assessee was not given a fair opportunity to represent his case, leading to a violation of natural justice, and thus decided to remand the case back to the assessing officer for a fresh assessment.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 26355 (ITAT-RAJKOT)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Other Referred Cases: M/s. Garg Bros. Pvt. Ltd. & Others vs. DCIT [ITA Nos.2519 to 2521/Kol/2017, order dated 18.04.2018]
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHIMANYU SINGH YADAV; LD.
• Assessee Lawyers: BRIJESH PAREKH; LD
• Keywords: Condonation of delay; Set aside; Opportunity of being heard; Principle of natural justice
• Section: 144

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT BEFORE DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER AND SHRI DINESH MOHAN SINHA, JUDICIAL MEMBER आयकर अपील सं./ITA No. 438/RJT/2023 Assessment Year: (2010-11) (Hybrid Hearing) Ketan Rameshpuri Gosai Dobaria Vadi Bhd Gausala, Nr. Kashi Vishvanath Temple, Jetpur, Rajkot Gujarat – 360370 Vs. The ITO, Ward – 1(2)(3) Rajkot, Aayakar Bhavan Rajkot, Gujarat - 360001 èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AMKPG2378R (Appellant) (Respondent) Appellant by : Shri Brijesh Parekh, Ld. A.R. Respondent by : Shri Abhimanyu Singh Yadav, Ld. Sr. DR Date of Hearing : 27 /12 / 2024 Date of Pronouncement : 31 /12 /2024 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeal filed by the assessee, pertaining to Assessment Year (AY) 2010-11, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals), which in turn arises out of an assessment order passed by Assessing Officer (in short ‘the AO”) u/s 144 of the Income tax Act, 1961, vide order dated 30.11.2016. 2. The appeal filed for Assessment Year 2010-11, is barred by limitation by 252 days. The assessee has moved a petition requesting the Bench to condone the delay. The ld. Counsel explained the sufficient cause, stating that advocate of the assessee, committed the ITA 438/Rjt/2023 Ketan Rameshpuri Gosai v. ITO, Rajkot AY 2010-11 Page | 2 mistake in filing the appeal, therefore, because of the mistake of the advocate, the assessee should not be penalized, and hance, in the interest of justice, the delay may be condoned. 3. On the other hand, Learned DR for the Revenue, argued that mistake of an advocate should not be considered, as a sufficient cause to condone the delay, therefore, assessee has failed to explain the delay. Hence, appeal of the assessee may be dismissed. 4. We have heard both the parties on this preliminary issue. We 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. We find that because of the mistake of the advocate of the assessee, the assessee should not be penalized, and for that we rely on the decision of I.T.A.T., 'C' Bench, Kolkata in the case of M/s. Garg Bros. Pvt. Ltd. & Others vs. DCIT [ITA Nos.2519 to 2521/Kol/2017, order dated 18.04.2018, wherein under similar set of facts and reasons, the Hon'ble Tribunal was pleased to condone the delay of 211 days by holding as under: \"3. We have heard both the parties on this preliminary issue. Having regard to the reasons given in the application for condonation of delay, we are of the considered opinion that assessee was under a bona fide belief that the impugned order of Pr. CIT was not appealable before this Tribunal since they were not advised by their Tax Consultants about this legal right. Later on, when a Senior Lawyer advised them to file an appeal, the assessees immediately took steps to file the appeals. Therefore, the delay caused. We note that delay was occurred because of the wrong advice of the Tax Professional for which assessees cannot be penalized. For the ends of justice, we condone the delay and admit the appeal for hearing. 5. Having heard both the parties and after having gone through the affidavit as well the delay condonation, application, we are of the ITA 438/Rjt/2023 Ketan Rameshpuri Gosai v. ITO, Rajkot AY 2010-11 Page | 3 considered opinion that in the interest of justice, the delay deserves to be condoned. We, accordingly, condone the delay. 6. On merit, 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 the order being an ex-parte order, stood vitiated on account of violation of principle of natural justice. Besides, the assessee wants to submit some basic documents to prove his claim, before the assessing officer, therefore, 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. 7. On the other hand, ld DR for the revenue, submitted that assessee has failed to submit documents before the lower authorities, therefore, the appeal may be restored back to the file of the lower authorities. 8. We have heard both the parties. Considering the above facts, we note that assessee has not given sufficient opportunity of being heard and could not plead his case successfully before the ld. CIT(A) and assessing officer. We note that the ld. CIT(A) did not discuss the assessee’s case on merits based on the material available before him hence it is a violation of principle of natural justice. We 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, without delving much deeper into the case, in the interest of justice, we restore the matter back to the file of assessing officer, for de novo adjudication and pass a speaking order after affording sufficient opportunity of being heard to the assessee, who in turn, is also directed to contest his stand forthwith. Therefore, ITA 438/Rjt/2023 Ketan Rameshpuri Gosai v. ITO, Rajkot AY 2010-11 Page | 4 we 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. For statistical purposes, the appeal of the assessee is treated as allowed. 9. In the result, the appeal of the assessee is allowed for statistical purposes. Order is pronounced on 31/12/2024 in the open court. Sd/- Sd/- (DINESH MOHAN SINHA) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER Rajkot *Ranjan Ǒदनांक/ Date: 31/12/2024 Copy of the Order forwarded to: 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Rajkot 6. Guard File By Order Assistant Registrar/Sr. PS/PS ITAT, Rajkot "