VIJAYBHAI BOOKBINDER,SURAT V. ITO, WARD- 3(2)(10), SURAT

ITA 786/SRT/2024

AI Insights

The case involves Vijaybhai Bookbinder, the appellant, contesting an order from the National Faceless Appeal Centre, Delhi / Commissioner of Income Tax (Appeals), which confirmed an addition under section 69A of the Income Tax Act, 1961, amounting to Rs.33,78,704. The appeal was initially dismissed by the CIT(A) due to a delay of 353 days in filing, which the assessee argued was unintentional and due to not receiving the assessment order. The Tribunal noted procedural errors by the CIT(A) in dismissing the appeal without proper notice and found that the assessee had not received any communication regarding the assessment, as the notices were sent to an incorrect email address.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 106896 (ITAT-SURAT)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2017-2018
• Other Referred Cases: Suo Moto Writ Petition No. 3 of 2020
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKESH JAIN
• Assessee Lawyers: PARUL AGARWAL
• Keywords: Condonation of delay
• Section: 144; 250; 69A; 119(2)(b)

Judgement Text

"आयकर अपीलीय अिधकरण, सूरत Ɋायपीठ, सूरत IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI BIJAYANANDA PRUSETH, ACCOUNTANT MEMBER आयकर अपील सं./ITA No.786/SRT/2024 (AY: 2017-18) (Physical court hearing) Vijaybhai Bookbinder, 31, Mangal Vihar Raw House, B/h Gangeshwar Mahadev Temple, Adajan, Surat - 395009 [PAN : ABIPB6520D] बनाम Vs The ITO, Ward – 3(2)(10), Surat अपीलाथŎ/Appellant ŮȑथŎ /Respondent िनधाŊįरती की ओर से /Assessee by Ms Parul Agarwal, CA राजˢ की ओर से /Revenue by Shri Mukesh Jain, Sr. DR सुनवाई की तारीख/Date of hearing 27.01.2025 उद ्घोषणा की तारीख/Date of pronouncement 11.02.2025 Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by assessee are directed against the order of National Faceless Appeal Centre, Delhi /Commissioner of Income Tax (Appeals) [for short to as “Ld.CIT(A)”] dated 22.05.2024 for assessment year (AY) 2017-18. The assessee has raised the following grounds of appeal: “1. That on facts and in law, the learned CIT(A) has grievously erred in confirming the addition u/s 69A of the Income Tax Act, 1961 of Rs.33,78,704.00/- on a completely different ground without affording any opportunity to appellant to rebut it. 2. That on facts and in law, the learned CIT(A) has grievously erred in dismissing the appeal on account of delay in filing appeal and disallowed the condonation of delay without accepting the fact as explained by assessee. 3. The appellant craves leave to add, alter, amend any ground of appeal.” 2. Rival submission about the parties have been head and record perused. The learned authorised representative (AR) of the assessee submits that appeal of ITA No.786/SRT/2024 (A.Y.17-18) Vijaybhai Bookbinder 2 assessee was dismissed by CIT(A) in ex-parte order by taking view that there is delay of 353 days in filing appeal before him. The ld CIT(A) has not discussed the merits of the appeal. In fact, the order passed by assessing officer (AO) on 16th November 2019, passed under section 144 was not received by the assessee. The assessee used to live in Rampura Surat and changed his address to Mangal Vihar Co-operative Society Adajan, Surat. Hence, notice if any sent through post was not received by assessee. The assessee came to know about the assessment order dated 16th November 2016, only on checking Income Tax Business Application (ITBA) portal in the month of November 2021. The assessee filed appeal before CIT(A) on 04.12.2020. Though, there was no delay in filing appeal from the date of knowledge of assessment order. The assessee, in statement of facts filed while filing first appeal explained such facts. in addition to oral submissions, the ld AR of the assessee also filed her short written synopsis on record. In the written synopsis, the assessee submitted that entire period of delay was likely to be condoned as per the order of Hon’ble Supreme Court in Suo Moto Writ Petition No. 3 of 2020, wherein the period in between 15th March 2020 till February 2022 was directed to be condoned. Substantial part of period of delay falls within such period. The ld CIT(A) ought to have condone the delay in filing appeal. The appeal of assessee was dismissed in limine by not condoning such delay in ex-parte order. In fact, no notice during the assessment were received by the assessee, thus, the assessee could not make compliance, resultantly, assessment was also completed an ex parte proceeding. The assessing officer sent all the notices and assessment order ITA No.786/SRT/2024 (A.Y.17-18) Vijaybhai Bookbinder 3 at email ID [e-mail], which does not belong to assessee, the copy of screen shot of ITBA portal is filed on record. The ld AR of assessee submits that assessee had good case on merit and is likely to succeed, if one more person it is given to him to contest the case on merit. The A.R. of the assessee submits that there was no intentional or deliberate delay in filing appeal before ld CIT(A), rather due to the facts explained hereinabove. The period of delay may kindly be condoned and ld CIT(A) may be directed to decide the appeal of assessee on merit. 3. On the other hand, the learned Senior Departmental representative (Sr DR) submits that assessee has not explain the delay in filing appeal before ld CIT(A) in a proper manner. The notices during assessment are issued on the e-mail available in system, which is provided by the assessee himself. In alternative submission the ld Sr DR submits that in case, this bench of the view that the delay in filing appeal before ld CIT(A) deserves to be condone, the matter may be restore back to the file of assessing officer, with the direction to the assessee to be more vigilant in future and not to make any default in making compliance in time. 4. We have considered the rival contention both the parties and have gone through the orders of lower authorities carefully. We find that first appeal of assessee was dismissed by ld CIT(A) by taking view that assessment order was passed on 19th November 2019 and the appeal before him was filed after 353 days. The ld CIT(A) held that mentioned that section 119(2)(b) of the Act empowered the Income Tax Authorities to condone the delay if there is any hardship to the party. The observation of ld CIT(A) is not correct. The ld ITA No.786/SRT/2024 (A.Y.17-18) Vijaybhai Bookbinder 4 CIT(A) is empowered to consider the plea of condonation of delay in filing appeal under section 249(3) of the Act. Further as per section 250(1), the ld CIT(A) is required to fix the appeal for hearing and to issue notice to the assessee as well as to the AO. We find before dismissing the appeal, the ld CIT(A) has nowhere recorded that any show cause notice or notice of hearing under section 250 was issued to the assessee, or not. Thus, the order passed by ld CIT(A) is not in accordance with the procedure prescribed in section 250 of the Act. 5. We have independently examined the facts of the case and find that even if it is presumed that assessment order dated 19.11.2019 was send and served through e-mail on the assessee or through the email of his representative, the e-mail address on which such notices were sent does not belongs to the assessee or his representative. Thus, the assessee has no knowledge of assessment proceedings. Even otherwise from March 2020 till February 2022, the period of filing appeal or for taking recourse of law was condoned by Hon’ble Apex Court in Suo Moto Writ Petition No. 3 of 2020, thus substantial part of delay is otherwise covered by order of Hon’ble Apex Court. Thus, keeping in view the explanation offered by ld AR of the assessee, we are of the view that there was no intentional or deliberate action on the part of delay in filing appeal before ld CIT(A). Hence, the delay in filing appeal before ld CIT(A) is condoned. Further considering the facts both the lower authorities have passed the order ex-parte, in absence of submissions by the assessee, hence, the matter is restored back to the file of AO to pass order afresh and in accordance with law. Needless to direct that before passing order afresh, ITA No.786/SRT/2024 (A.Y.17-18) Vijaybhai Bookbinder 5 the AO shall allow opportunity to the assessee. The assessee is also directed to be more vigilant in making compliance. In the result, ground No. 2 of the appeal is allowed and ground No. 1 of the appeal is allowed for statistical purpose. Order pronounced in the open court on 11/02/2025. Sd/- Sd/- (BIJAYANANDA PRUSETH) (PAWAN SINGH) लेखा सद˟/Accountant Member Ɋाियक सद˟/Judicial Member सूरत / Surat Dated: 11/02/2025 Self/dragon आदेश की Ůितिलिप अŤेिषत/ Copy of the order forwarded to :  अपीलाथŎ/ The Appellant  ŮȑथŎ/ The Respondent  आयकर आयुƅ/ CIT  िवभागीय Ůितिनिध, आयकर अपीलीय आिधकरण, सूरत/ DR, ITAT, SURAT  गाडŊ फाईल/ Guard File By order/आदेश से, // TRUE COPY // सहायक पंजीकार आयकर अपीलीय अिधकरण, सूरत "