IN THE INCOME TAX APPELLATE TRIBUNAL
(DELHI BENCH: `SMC': NEW DELHI)
BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER
ITA No.:- 1400/Del/2019
(Assessment Year: 2011-12)
Sunita Devi ITO
P-240, Sector-12, Pratap Vihar, Vs. Ward- 2(3)
Ghaziabad, Ghaziabad
Uttar Pradesh
PAN No: ADSPD3360M
APPELLANT RESPONDENT
Assessee by : Sh. C.S. Anand, Adv.
Revenue by : Sh. S.L. Anuragi, Sr. DR
Date of Hearing : 12.06.2019
Date of Pronouncement : 25.06.2019
ORDER
PER DIVA SINGH:
The present appeal has been filed by the assessee assailing the
correctness of the Order dated 30.11.2018 of CIT(A)- Ghaziabad, pertaining to
2011-12 Assessment Year on various grounds including ground nos. 2 and 4.
However since the parties were heard only on these grounds accordingly they
are reproduced hereunder:
"2. That by denying the assessee an effective opportunity of being heard, the Ld.
CIT(A) had arbitrarily taken away the assessee's right to (i) justify the delay
occurred in filing of appeal; (ii) raise an additional ground of appeal
challenging the assumption of jurisdiction u/s 147, and (iii) present her case on
merits.
4. That on the facts of the case and under the law, the assumption of jurisdiction
u/s 147 is illegal."
2. The relevant facts of the case are that the appeal filed by the assessee
before the CIT(A) was delayed by five months. Para 2 and 2.1 of the impugned
Order which brings out the factual matrix and under challenge in the present
proceedings are reproduced hereunder for the sake of completeness :
ITA No.:- 1400/Del/2019
Sunita Devi.
"2. The appellant filed the appeal on 16.07.2017 which is found to be delayed by
more than 5 months. As per Form 35 the appellant claimed to be suffering from
arthritis and was ignorant about law. Admittedly appellant was traveling for
treatment to Delhi, immobility cannot be considered as an argument for delay of
more than 5 months especially considering the fact that appeal can also be e-
filed.
2.1. The notice for explaining the delay was sent to the appellant on 14.11.2018
at the address given in Form 35 for the communication through the speed post
and e-mail. No reply of cause for delay in filing appeal has been given by the
appellant. Five months delay cannot be explained mere taking argument of
ignorance of law. Examination of facts reveals that the notice of demand was
served on 30.12.2016. Thus there is unjustifiable delay in filing the appeal.
Condonation of delay is not a matter of right since appellant has failed to show
reasons of delay on last day of limitation and thereafter for each day, it is felt
that appellant has not acted with reasonable diligence in prosecuting the appeal.
Reliance in this regard is placed on decision in the case of Rankak & Ors, Vs
Rewa Coalfields Ltd. AIR 1962 SC 361, JCIT vs Tractors & Farm Equipments
Ltd. (ITAT, Chennai-TM) 104 ITD 149, Madhu Dadha vsACIT (Mad) 317 ITR
458. Considering above facts and circumstances this appeal preferred by the
appellant is treated as non-est being defective."
3. The Ld. AR inviting attention to the records submitted that the CIT(A).
before the passing of the order did not provide an opportunity of being heard
to the assessee. Referring to Form No. 35 which is a copy of the Memo of
Appeal filed by the assessee before the CIT(A) it was his submission that in
specific columns 14 and 15, the assessee had clearly accepted the fact that
there was a delay in filing of the appeal and in column no. 15 had also offered
an explanation for the delay. The relevant extract referred to from the record
relied upon by the assessee is reproduced for ready reference:
4. In the said background it was his submission that an opportunity of
being heard was never provided to the assessee by the CIT(A). It was submitted
that had such an opportunity been provided the assessee would have been able
to draw attention to the explanation which may not have been considered. The
order was assailed on the grounds of being arbitrary and contrary to record.
Relying on the affidavit filed, it was submitted that the assessee being
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ITA No.:- 1400/Del/2019
Sunita Devi.
a chronic patient of arthritis had been informed by her C.A. that for filing an
appeal online, an electronic digital signature (DSC) was necessary. Affidavit of
the assessee was relied upon. It was submitted that the DSC was made
available to the assessee only on 12.07.2017 and promptly thereafter the
appeal had been filed. The delay has occurred on account of these peculiar
facts which could never be argued before the said authority as no opportunity
of being heard had been granted.
5. The Ld. Sr. DR considering the record agreed that apparently no
opportunity of being heard has been provided. Addressing the evidence, it was
his submission that may be the affidavit of the Counsel is also necessary who
has advised her to apply for a digital signature. The issue may be remanded.
6. The Ld. AR also submitted that the assessee had not raised a ground
challenging the reopening before the CIT(A) which is raised in the present
proceedings. Accordingly, he sought permission that the said ground may also
be remanded.
7. I have heard the submissions and perused the material on record. On a
consideration of the peculiar facts and circumstances of the present case, I am
of the view that the decision making process followed by the CIT(A) is not in
conformity with the settled legal position. In case the CIT(A) was convinced
that on limitation an adverse view was to framed then it was incumbent upon
the said authority to at least grant an opportunity of being heard to the
assessee before the passing of the Order. Had such an opportunity been
provided the assessee would have been in a position to make good its
explanation by way of evidences etc. which was presumed to be found wanting.
For want of this opportunity, the order cannot be upheld. Accordingly, for the
reasons given hereinabove, the impugned Order is set aside back to the file of
the CIT(A) with the direction to pass a speaking Order in accordance with law
after giving the assessee a reasonable opportunity of being heard. While so
directing it is noted that the assessee has raised a ground challenging the
reopening which had not been raised before the CIT(A). It goes without saying
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ITA No.:- 1400/Del/2019
Sunita Devi.
that jurisdictional issue can be raised by the assessee at any time. The said
issue is also remanded back to the CIT(A) with the direction to pass a speaking
Order in accordance with law after providing a reasonable opportunity of being
heard. Said Order was pronounced on the open Court at the time of hearing
itself.
8. In the result, the appeal of the Assessee is allowed for statistical
purposes.
Sd/-
Sd/-
(DIVA SINGH)
JUDICIAL MEMBER
Dated: 125.06.2019
Bidhan / AG(Chd)/Poonam(CHD)
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
ITAT NEW DELHI
Date of dictation 12.06.19
Date on which the typed draft is placed before the dictating Member 14.06.19
17.06.19
20.06.19
24.06.19
Date on which the typed draft is placed before the Other Member
Date on which the approved draft comes to the Sr. PS/PS
Date on which the fair order is placed before the Dictating Member
for pronouncement
Date on which the fair order comes back to the Sr. PS/PS
Date on which the final order is uploaded on the website of ITAT
Date on which the file goes to the Bench Clerk
Date on which the file goes to the Head Clerk
The date on which the file goes to the Assistant Registrar for
signature on the order
Date of dispatch of the Order
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