The laws aids those who aid themselves, says ITAT

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT
BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM

ITA No.2371/AHD/2015
Assessment Year: (2009-10)
(Virtual Court Hearing)

Shri Kiranpal Sohanpal Singh,
B-14, Delhi Citizen Society, Sector
13, Near D.C. Chowk, Rohini,
Delhi-110085.
(Assessee) 

Vs. 

The ITO, Ward-3,
Bharuch.
PAN/GIR No.: ATZPS4776P
(Respondent)

Assessee by : Shri Amar Shah, AR
Revenue by : Ms Anupama Singhla, Sr. DR

Date of Hearing : 17/05/2021
Date of Pronouncement : 14/06/2021

O R D E R

PER DR. A. L. SAINI, ACCOUNTANT MEMBER:

Captioned appeal filed by the assessee pertaining to assessment year (AY) 2009-10, is directed against the order passed by the Learned Commissioner of Income Tax(Appeals)-VI, Baroda [in short “the ld. CIT(A)”], which in turn arise out of an assessment order passed by the Assessing Officer under section 143(3) of the Act (hereinafter referred to as “the Act”), dated 13.12.2011.

2. At the outset itself, Learned Counsel informs the Bench that appeal filed by the assessee is barred by limitation by 422 days. The assessee filed affidavit for condonation of delay, and narrated the reasons for delay in filing the appeal stating that during the period January 2014 to July 2015, assessee was not staying in Bharuch and he had shifted his business from Bharuch to New Delhi and assessee`s family had also been shifted from Bharuch to New Delhi.It is also stated in the affidavit that assessee`s old consultant had not attended the matter properly during the appellate proceedings and did not  communicate to the assessee about the order of ld CIT(A) therefore assessee could not file the appeal before the Tribunal, on stipulated time. Thereafter, the assessee appointed another new consultant and with help of the new consultant the assessee has filed the appeal before the Tribunal. Hence, assessee stated that delay in filing appeal before Tribunal was on account of factors beyond his control and there was no gross negligence on his part. Based on these facts, Learned Counsel prayed the Bench that delay may be condoned and appeal of the assessee may be admitted for hearing.

3.On the other hand, Ms Anupama Singhla, Learned Senior Departmental Representative (in short “the ld. Sr. DR”) for the Revenue submitted that ignorance of law is no excuse. lt is clear from the affidavit filed by the assessee that either the assessee was not at all aggrieved by the impugned order or was too casual. In either case, the assessee does not warrant condonation of delay in filing the appeal. It is a settled proposition that even the laws aids those who aids themselves. Thus, she prayed that the delay in filing the appeal should not be condoned.

4. We have heard both the parties on this preliminary issue. We note that assessee has not received the order of the ld. CIT(A), on time, because he has been shifted his residence at Bharuch (Gujarat) to New Delhi. Besides, assessee`s old consultant did not assist and cooperate the assessee. The old consultant did not inform the assesse about the status of the case going on before the ld. CIT(A). We are of the view that genuine assessee should not suffer because of the mistake committed by his old consultant. Therefore, having regard to the reasons given in the petition, we condone the delay and admit the appeal for hearing.

5. Coming to the merit of the case, we note that solitary grievance of the Learned Counsel for the assessee is that during the appellate stage assessee has submitted additional evidences before the ld. CIT(A). The ld. CIT(A) did notadmit the additional evidences therefore, the assessee’s appeal has not been adjudicated based on the additional evidences. Hence, ld Counsel prayed the Bench that matter may be remitted back to the file of the Assessing Officer for
de novo adjudication.

6. On the other hand, the ld. DR for the Revenue opposed the plea taken by the Learned Counsel. She submitted that assessee has not explained the reasons for not submitting these additional evidences before the assessing officer. Therefore ld. CIT(A) has rightly held that since the assessee has failed to explain with reasons that why and how he could not file these evidences before the Assessing Officer. That is, whether the assessee was prevented by sufficient cause to produce these additional evidences before the Assessing Officer, have not been properly explained, hence, order of the ld CIT(A) may be upheld.

7. We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the facts of the case including the findings of the ld. CIT(A) and other material brought on record. We note that before theld. CIT(A), the assessee has submitted additional evidences, which were not admitted by the ld CIT(A). The ld Counsel submits before the Bench that these additional evidences were not available readily when the assessment proceedings were going on. We note that when substantial justice and technical considerations are pitted against each other, cause of substantial justice  deserves to be preferred. We also note that after all, the aim of natural justice, is to secure justice. Since the assessee has explained the reasons for not producing these additional evidences during assessment stage stating that parties from whom these evidences are to be collected made delay in providing these evidences, but by the time of appellate proceedings the assessee was able to collect these evidences from the parties. Considering these facts and circumstances and in the larger interest of justice, equity and fair play, we are of the view that these additional evidences should be admitted.

Therefore, without delving much deeper into the merits of the case, in the interest of justice, we restore the matter back to the file of Ld. CIT(A), 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, 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 ld. CIT(A), with a direction to admit these additional evidences, to adjudicate the issue afresh on merits. For statistical purposes, the appeal of the assessee is treated as allowed.

8. In the result, the appeal filed by the assessee is allowed for statistical purposes.

Order is pronounced on 14/06/2021 by placing result on Notice Board.

 Sd/-                                       Sd/-
 (PAWAN SINGH)                 (Dr. A.L. SAINI)
 JUDICIAL MEMBER            ACCOUNTANT MEMBER

Surat
Date: 14/06/2021
SAMANTA

Copy of the Order forwarded to
1. The Assessee
2. The Respondent
3. The CIT(A)
4. CIT
5. DR/AR, ITAT, Surat
6. Guard File

 By Order
 / / TRUE COPY /
 Assistant Registrar/Sr. PS/PS
 ITAT, Surat