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TMI Blog2021 (7) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... at assessee could not plead his case before the ld. Assessing Officer. We also note that during the assessment stage, the ld. Assessing Officer has issued several notices to the assessee, but assessee did not make the compliance and therefore, the ld. Assessing Officer has passed the ex-parte order under section144 of the Act. We note that in assessee's case the evidences and books of accounts are to be verified at primary stage, therefore, we are of the view that the said lis should be remitted back to the file of the ld. Assessing Officer for fresh assessment. Hence, we set aside the order of Ld. CIT(A) and remit the issue back to the file of the assessing officer for de-novo adjudication. - ITA No. 22/SRT/2021 - - - Dated:- 13-7-2021 - Pawan Singh, Member (J) And Dr. A.L. Saini, Member (A) Assessee by : Shri Ashwin K. Parekh CA Respondent by : Shri O. P. Vaishnav CIT(DR) ORDER PER DR. A. L. SAINI, ACCOUNTANT MEMBER Captioned appeal filed by the assessee pertaining to assessment year 2013-14, is directed against the order passed by the ld. Commissioner of Income Tax(Appeals)-4[ld. CIT(A)], Surat dated 13.05.2019, which in turn arises out of an ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Tribunal may admit the appeal or permit filing of memorandum of cross objection after expiry of relevant period, if it is satisfied that there was sufficient cause for not presenting it within that period. We note that assessee has explained the delay successfully, therefore he deserves that delay in filing the appeal should be condoned. We note that on identical facts, the Co-ordinate Bench of ITAT Ahmedabad in the case of Suchit Arvindbhai Patel Vs. ITO No. 1271 1272/Ahd/2018 had condoned the delay of 960 days in filing the appeal observing as follows: 6. We have duly considered rival contentions and gone through the record carefully. The discussion made by the Tribunal, after taking note of the assessee 's explanation, while condoning the delay, reads as under:- 5. As alleged above, there is no dispute that the appeals filed before the CIT(A) were time barred by 1099 days and 906 days. In order to explain the delay the assessee has filed his affidavit. The affidavit filed by the assessee reads as under: I, Suchit Arvindbhai Patel-aged 35 years residing at B-14, Madhav Vihar Bungalows, Tapovan Circle, S.P. Ring Road, Chandkheda, Ahmedabad do hereby sol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court lifted the attachment of properties and bank accounts and ordered to considered the delay in filing an appeal before your honour. Copies of judgment of Hon'ble High Court of Gujarat is attached herewith as per Annexure 4. Due to above facts, there is a delay of 1047 days (approx. as correct date of receipt of order is not known to assessee) in filing appeal for which I pray your honour to condone the same and decide the appeals on merits. I do hereby solemnly confirm that whatever is stated above is true to the best of my knowledge and belief. 6. The ld. CIT(A) was not satisfied with the explanation of the assessee. According to the ld. CIT(A), assessee had appeared before the AO along with his tax consultant and took adjournments. However, thereafter he failed to appear. With regard to the contention of the assessee that the assessment order as well as penalty was served on his father, the ld. CIT(A) observed that this assertion is patently false. These orders were served upon the assessee and not on his father. On account of these two reasons, the ld. CIT(A) recorded a finding that the assessee failed to give plausible explanation for filing the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is capable of removing injustice and is expected to do so. 8. Similarly, we would like to make reference to authoritative pronouncement of Hon'ble Supreme Court in the case of N. Balakrishnan vs. M. Krishnamurthy (supra). It reads as under: Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment proceedings. In the second reason, the ld. CIT(A) has observed that demand notice and assessment order were served upon the assessee on 5.1.2015 and not on his father on 31.3.2015. She further observed that Shri A.M. Shah has made a request to the AO for stay of recovery proceedings and this letter was written on 13.9.2016. Thus, there is no plausible reason for not filing the appeal upto 7.2.2018. A perusal of the above circumstances would suggest that no doubt there is some negligence at the end of the assessee for conducting his income tax proceedings. There is no material before us to ascertain whether the assessee has appeared before the AO on 14.11.2014. Similarly, there is nothing to doubt that the assessment order might have not been served upon father of the assessee. Original acknowledge receipt has not been placed on the record. However, considering the case of an individual upon whom tax liability of ₹ 22,72,460/- has been fastened by virtue of an ex parte order which has been further compounded by imposition of penalty of ₹ 7,40,871/- we are of the view that punishment in the shape of tax liability is far disproportionate with the alleged neglig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 35. The ld. CIT(A) has given five opportunities of hearing, but none appeared before him [vide para 5.1 of the order of ld. CIT(A)]. 8. However, we note that order passed by the ld. Assessing Officer is also an ex-parte order under section 144 of the Act, therefore we note that assessee could not plead his case before the ld. Assessing Officer. We also note that during the assessment stage, the ld. Assessing Officer has issued several notices to the assessee, but assessee did not make the compliance and therefore, the ld. Assessing Officer has passed the ex-parte order under section144 of the Act. We note that in assessee's case the evidences and books of accounts are to be verified at primary stage, therefore, we are of the view that the said lis should be remitted back to the file of the ld. Assessing Officer for fresh assessment. Hence, we set aside the order of Ld. CIT(A) and remit the issue back to the file of the assessing officer for de-novo adjudication. 9. In the result, appeal filed by the assessee is allowed for statistical purposes. Order is pronounced at the time of hearing of appeal on 13/07/2021 in the Virtual Court of hearing. - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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