Case Law Details
Divyesh Devabhai Pampania Vs ITO (ITAT Rajkot)
Income Tax Appellate Tribunal (ITAT) Rajkot has condoned a 107-day delay in filing an appeal by Divyesh Devabhai Pampania for the Assessment Year 2015-16. The appeal was initially dismissed by the Commissioner of Income Tax (Appeals) [CIT(A)] solely due to the delay. The assessee argued that a significant portion of the delay was covered under the Supreme Court’s Covid-19 extension order, leaving only 107 days unaccounted for. The remaining delay was attributed to the assessee’s health issues, including post-Covid complications such as insomnia and weakness, which affected his ability to comply with tax proceedings on time. Additionally, the assessee, residing in a small village, claimed that a notice was served to an old consultant who failed to forward it, further delaying the appeal process.
ITAT Rajkot found the delay neither intentional nor deliberate and emphasized the importance of fair hearing. Observing that both the Assessing Officer (AO) and CIT(A) had passed ex-parte orders without considering the case on its merits, the tribunal set aside the CIT(A)’s order and remanded the matter back to the AO for fresh adjudication. The AO has been directed to provide the assessee with a fair opportunity to present his case and submit necessary documents. The assessee has also been advised to be more vigilant in future proceedings. Since the quantum appeal was restored, the related penalty appeal was also sent back for reconsideration.
FULL TEXT OF THE ORDER OF ITAT RAJKOT
Captioned appeals filed by the assessee, pertaining to Assessment Year (AY) 2015-16, are directed against the separate orders passed by the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [in short “the Ld. CIT(A)/NFAC”], both dated 22/11/2023, which in turn arise out of an assessment order passed by Assessing Officer (in short ‘the AO”) u/s 144 r.w.s.147 r.w.s 144B of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), dated 15/03/2022, and penalty order passed under Section 271(1)(c) of the Act, dated 28.09.2022.
2. Since, both these appeals are interconnected, and pertain to same assessee, therefore with the consent of the parties, both these appeals are clubbed and heard together and are decided by the consolidated order to avoid the conflicting decision.
2. At the outset, the Ld. Counsel for the assessee, begins by pointing out that there was a delay of 184 days in filing appeal before the ld. CIT(A), which was not condoned by the ld. CIT(A), despite of sufficient cause explained by the assessee, during the appellate proceedings, and appeal of the assessee, was dismissed by the ld. CIT(A), on this score only. The ld. Counsel for the assessee submits that most of delay in filing appeal before the ld. CIT(A) was covered by the order of Hon’ble Supreme Court in Suo Moto Writ Petition (C) No. 03/2020 in MA No. 21 of 2022 in MA No. 665 of 2021, wherein the Hon’ble Supreme Court had condoned the delay during Covid-19 Pandemic, from the period, starting from 15th March, 2020 to till 28/02/2022 and after that there was a 90 days grace period, was also allowed by the Hon’ble Supreme Court to file appeal before the various forums. Therefore, after excluding the delay which is attributable to Covid-19 Pandemic, the effective delay is only 107 days, in filing appeal, before the ld. CIT(A). The ld. CIT(A) had not condoned such minor delay of 107 days in filing the appeal.
3. The ld. Counsel for the assessee, explained the balance delay of 107 days, in filing the appeal before the ld.CIT(A), stating that during the course of assessment proceedings, the assessee was diagnosed with Covid-19 disease. The assessee was required to isolate himself from other members in his house. This led to a halt in his daily life and therefore, social interactions were limited. The Post Covid-19, the assessee was further diagnosed with Insomnia, Weakness and decrease appetite. Therefore, the assessee was under medication for a long period of time. Due to ill health and wide spread disease, the appeal before the ld. CIT(A) could not be filed within the limitation period. Therefore, ld. Counsel contended and that in the interest of justice, the delay may be condoned and appeal may be restored back to the file of the assessing officer for fresh adjudication.
4. On the other hand, the Learned Senior Departmental Representative (Ld. Sr. DR) for the Revenue submitted that the assessee has failed to explain the sufficient cause and assessee did not submit relevant evidences to explain the effective delay of 107 days, therefore, delay should not be condoned.
5. I have heard the submissions of both the parties on this preliminary issue and have gone through the sufficient cause, explained before the ld. CIT(A), before the appellate proceedings, which is convincing in nature. Apart from the sufficient casue explained by the Ld. Counsel for the assessee, in his submission, noted above, the ld. Counsel for the assessee, further submits before me that the assessee is located in a small village and the notice of Assessing Officer was served on old consultant/advocate of the assessee, who did not handover the notice to the assessee, therefore, the assessee was not aware about passing of the order by the ld. CIT(A). However, when the notice of demand was received by the assessee, then the assessee came to know that the ld. CIT(A) has dismissed the appeal of assessee. Therefore, I find that the delay of 107 days, should be condoned in filing appeal before the ld. CIT(A). Based on the above facts explained by the assessee, I have noted that the delay was neither intentional nor deliberate. The delay
6. Since I have condoned the delay in filing appeal before the ld. CIT(A) and noted that the ld. CIT(A) did not pass the order as per mandate of provisions of Section 250(6) of the Act, that is, there is no adjudication by the ld. CIT(A) on merit. I find that both the lower authorities have passed their orders in ex- parte proceedings, therefore, one more opportunity should be granted 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, without delving much deeper into the merits of the case, in the interests of justice, I 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, 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. The assessee is also directed to be more vigilant in future and not to take any adjournment without any valid reason. The assessee is also directed to submit all the documents, evidences and replies as soon as possible without any further delay. In the result, appeal of the assessee is allowed for statistical purposes.
7. Since, the quantum appeal of assessee being ITA No. 408/Rjt/2024 is restored back to the file of Assessing Officer, therefore, the penalty appeal being ITA No. 411/Rjt/2024 is also restored back to the file of Assessing Officer for adjudication de novo.
8. In the combined result, both these appeals of the assessee are allowed for statistical purposes.
Order is pronounced on 30/12/2024 in the open court.
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