TaxTMI 
TaxTMI 
2025 (5) TMI 2123
X X X X Extracts X X X X
X X X X Extracts X X X X
....y submits that: 1. The learned Assessing Officer has erred in passing the above said Order that is had in law conflicting the principles of natural justice and is liable to be quashed. 2. The learned Commissioner of Income Tax (Appeals) - 5 has erred in passing the above said Order that is bad in law conflicting the principles of natural justice. 3. The learned Assessing Officer has erred in disallowing the relief U/s 90 of the Income Tax Act. 1961 amounting to Rs. 7,04,594/-. 4. The learned Assessing Officer has erred in mentioning the claim of relief U/s 54 of the Income Tax Act. 1961 that was not claimed by the Appellant at all. 5. The learned Assessing Officer has erred in disallowing the deductions claimed under Chapter VIA of the Income Tax Act, 1961 amounting to Rs. 1,10,977/-. The addition as made being erroneous is to be deleted. 6. In any case, the learned assessing officer has erred in concluding the assessment u/s 144 of the Act holding that none of the notices issued were complied by the appellant. On the facts and circumstances of the case, and the law applicable, none of the notices were served on the appellant, t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dismissing the Appeal, erroneously recording that the Appellant remained unrepresented at the hearing scheduled on 25th January 2018, which assertion is factually incorrect. 15. On 2^nd March 2018, CA Chikkerur submitted an online grievance through e-filing portal, requesting a meeting with the concerned officer and seeking an opportunity to submit the supporting documents. Thereafter, on 31^st March 2018, the Appellant was informed that response is received directing to approach Commissioner of Income Tax (Appeals) - 5 for rectification of the error, a corrective and revised order would be issued by the Commissioner of Income Tax (Appeals) - 5. 16. On 19^th June 2018, another grievance was submitted. stating that CA Chikkerur, had approached the Commissioner of Income Tax (Appeals) - 5 but was not permitted to submit hard copies of supporting documents. Consequently, he emailed all relevant documents to the Commissioner of Income Tax (Appeals) - 5 based on the response received from Jurisdictional Assessing Officer. 17. On 26^th September 2022, CA Chikkerur. submitted another grievance, highlighting that an order under Section 250 of the Income Tax Act. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e appellate order was passed on 28.2.2018. 6. Against this appellate order, the appeal was filed on 14.11.2024. Assessee filed an affidavit explaining the reasons for the delay in filing of appeal as under: - AFFIDAVIT I. Vikram Shetty S/o Sheshachala Shetty aged about 46 years, residing at Unit 2. 17 Peterson Street. Highett. Victoria Australia - 3190 hereby solemnly affirms and state that the contents of this application for condonation of delay in filing the appeal are true and correct to the best of my knowledge information and belief as follows: 1. I have been filing my Income Tax Return (ITR) from the AY 2002-2003 onwards. My jurisdictional Assessing Officer was Income Tax Officer. Ward 5(3)(1). However. due to change in my residential status. my case now falls under the Deputy Commissioner of Income Tax. Circle 2(1). International Taxation. Bengaluru. as I have been working in Australia since 29th May 2014. 2. On Ist April 2016. I received Assessment Order U/s 144 from the Income Tax Officer. Ward 5(3 )( 1). Bangalore stating as follows: There was no response to the notices issued to the assessee. A letter dated 16-01- 2016 was issue....
X X X X Extracts X X X X
X X X X Extracts X X X X
....usly recording that I remained unrepresented at the hearing scheduled on 25th January 2018. which assertion is factually incorrect. 10. On 2nd March 2018. CA Chikkerur submitted an online grievance through e-filing portal. requesting a meeting with the concerned officer and seeking an opportunity to submit the supporting documents. Thereafter. on 31st March 2018. I was informed that response is received directing to approach Commissioner of Income Tax (Appeals) - 5 for rectification of the error. a corrective and revised order would be issued by the Commissioner of Income Tax (Appeals) - 5. 11. On 19th June 2018. another grievance was submitted. stating that CA Chikkerur. had approached the Commissioner of Income Tax (Appeals) - 5 but was not permitted to submit hard copies of supporting documents. Consequently. he emailed all relevant documents to the Commissioner of Income Tax (Appeals) - 5 based on the response received from Jurisdictional Assessing Officer. 12. On 26th September 2022. CA Chikkerur. submitted another grievance. highlighting that an order under Section 250 of the Income Tax Act. 1961. was passed without affording me a reasonable opportu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to him, delay should not be condoned as it is devoid of any sufficient cause. 10. We have carefully considered the rival contentions and perused the orders of the ld. lower authorities as well as the delay involved in the appeal. In this case the order of the ld. CIT(A) was passed and received by the assessee on the same day on 28.2.2018 and no doubt, the appeal is filed on 14.11.224 causing delay of 2390 days. The facts clearly show that at the time of filing of return of income for that year, assessee has claimed relief u/s. 90 of Rs. 7,04,594/- and deduction under Chapter VIA of Rs. 1,10,977/- in the return of income filed on 31.7.2013 declaring total income of Rs. 43,24,130/-. Assessee is working in Australia sine 29.5.2014. Therefore the return of income which was picked for scrutiny resulted into an ex parte assessment order u/s. 144 of the Act as assessee could not participate in assessment proceedings. However, the claim of the assessee is that he did not receive any notices. It is also his claim that being a non-resident, unfamiliar with Indian tax laws, assessee has authorised his CA to respond to the income tax department. However as the ex parte assessment order was....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he assessee is duty bound to show that there is a sufficient cause. This is a condition precedent to condone the delay. In fact wherever there is a request for condonation of delay, the assessee has to explain as to what was the sufficient cause which means an adequate and enough reason which prevented him to approach the court within the period of limitation. Even after showing the sufficient cause it is the discretion of the ITAT to allow or dismiss the application for condonation of delay. This decision is required to be based on the bonafides of the assessee. The discretion will also not be exercised when the delay is caused by negligence, inaction or lack of bonafides. In such cases, even if harshly the facts cause inconvenience to the assessee, it has to be applied with all its rigours. Even equity has no place in condoning the delay. Further the concept of liberal approach or justice oriented approach of substantial justice cannot be employed to overwrite the substantial law of limitation. The discretion has to be exercised in an enough manner to allow the application for condonation. Even the merits of the case are irrelevant. Thus, the Tribunal is empowered to exercise the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in the light of the above legal position that now we have to test whether the inordinate delay in filing the proposed appeal ought to be condoned or not in this case. The order of the ld. CIT(Appeals) was passed on 28.2.2018. Upto 18.7.2018 the assessee approached the CIT(Appeals) as well as the grievance was also made. When the grievance petition and rectification application was made, nothing more the assessee could have done, as both of these petitions were not rejected. Subsequently when the assessee was approached for demand, another grievance was raised which was responded to on 17.5.2023. Thereafter there was a change in the consultant and assessee approached by filing an application u/s. 119(2b) of the Act which was rejected on 23.7.2024. The assessee approached the CA, who advised him to file an appeal and based on his advise, the appeal came to be filed before the ITAT. 13. It has to be noted that the assessee is a non-resident, residing in Australia. Naturally he was not aware and was solely dependent on the consultant, who in fact took several decisions by knocking the doors of various authorities such as the CIT(Appeals), grievance application, the AO, may be the d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....find that the ld. CIT(Appeals) has dismissed the appeal of the assessee not on the merits of the case, but holding that the assessee is not willing to prosecute the appeal and applied the decision of the CIT v. Multiplan India Ltd., 38 ITD 320. On carefully looking at the provisions of section 250(6), the CIT(Appeals) has to decide the appeal on its own merits. According to section 251 in an appeal against the order of assessment, he has to confirm, reduce, enhance or annul the assessment by giving the detailed reason. He cannot short-circuit the appeal of the assessee and dismiss it for want of prosecution. Even this allegation of the ld. CIT(A) also does not hold water for the reason that all the notices issued by him were responded to by the assessee. Thus dismissing appeal of the assessee by the ld. CIT (A) is not in accordance with the law. 18. Before the ld. AO, the assessment took place in absence of the assessee. The notices might have been issued to the assessee at his Bangalore address, but it is apparent that by that time assessee for employment purpose shifted to Australia. Looking at the Statement of Facts before the CIT(Appeals) as part of Annexure to Form 35, it i....