HASTIMAL ,JALORE vs. ITO, WARD-1, JALORE
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Income Tax Appellate Tribunal, JODHPUR BENCH, JODHPUR
Before: DR. M. L. MEENA & SH. ANIKESH BANERJEE
Per Dr. M. L. Meena, AM:
The captioned appeal has been filed by the assessee against the order of the ld. CIT(A) National Faceless Appeal Centre (NFAC), Delhi
dated 29.10.2021 in respect of Assessment Year: 2017-18 challenging therein the impugned order passed ex-parte qua the assessee.
2 ITA No. 116/Jodh/2022 Hastimal v. ITO 2. At the time of hearing, the ld. counsel for the assessee has explained
the delay of 368 days with the support of notarized affidavit dated
18.08.2022 in filing the appeal against the impugned order stating that the
appellant is living in small village being salaried and agriculturist and is not
very conversant with the email and messages received on the mobile, and
it was come to his knowledge only when demand notice received for
recovery and the assessee has appointed the present counsel who while
checking online, came to know the status of the appeal and immediately
filed the appeal. He pleaded that considering the peculiar facts and
circumstances of the appellant’s case and the disputed amount being less
than 10,00,000/- being deposited cash deposited during demonetization
period the delay in filing the appeal may be condoned. The ld. DR has no
objection to the request of the assessee in view of the peculiar facts and
circumstances of the appellant’s case and accordingly the delay is
condoned and appeal admitted on merits.
At the outset, the ld. counsel for the assessee has submitted that the
ld. CIT(A) has passed the order ex-parte qua the assessee by endorsing
the finding of the AO with the observation that the appellant was provided
to avail the opportunities of being heard by way of issuing of hearing
3 ITA No. 116/Jodh/2022 Hastimal v. ITO notices dated 19.12.2021, 23.09.2021 and 05.10.2021 but the appellant
has not submitted its response to these notices. The ld. AR submitted that
the appeal has not been adjudicated on merits of the case by ld. CIT(A)
and that the rejection of the appeal in such arbitrary manner without service
of notice on the assessee is bad in law. The notices as mentioned in the
appellate order have not been received by the appellant till date, it is only
when the status of the appeal was checked online, it came to know that the
appeal has already been decided ex-parte. In support he placed reliance
on the case law on the issue that lack of knowledge of electronic services
of notice is a sufficient cause, for non compliance as under:
“That Delhi Bench of the Hon’ble ITAT in the case of Egis international S.A. vs. ACIT (ITA No. 1663/Del/2021) A.Y. 2016-17, vide order Dt. 03.08.2023, while dealing with the identical facts has restored the matter back to the file of the CIT(A) NFAC for de novo adjudication on merits after allowing reasonable opportunity of hearing to the assessee because it was brought on record before the Hon’ble Bench that the notices sent to the e-mail of the employee did not reach the assessee and the non-compliance was not deliberate.”
The ld. AR argued that the impugned order passed by the ld. CIT(A)
is bad in law because he has confirmed the findings of the Assessing
Officer without granting due and reasonable opportunities of being heard to
the appellant who has been residing in a small village and no
communication of the notices of hearing being received and that the ex-
4 ITA No. 116/Jodh/2022 Hastimal v. ITO parte order was passed without appreciating the facts regarding the cash
deposited of Rs.9,00,000/- out of salaried income and agricultural income
in the assessee’s bank account during demonetization period. He pleaded
that the matter may be sent back to the ld. CIT(A) to adjudicate the appeal
afresh after granting proper opportunities of being heard to the appellant
assessee and considering the written submissions to be filed during the
course of appellate proceedings. In view of the principles of natural justice,
we consider it deem fit to remand back the matter to the file of ld. CIT(A) to
adjudicate the appeal afresh as per law after granting sufficient
opportunities of being heard to the appellant assessee. No doubt, the
assessee shall co-operate in the fresh proceedings before the ld. CIT(A).
Accordingly, the matter is restored to the file of the ld. CIT(A).
In the result, the appeal filed by the assessee is allowed for statistical
purposes.
Order pronounced in the open court on 07.12.2023
Sd/- Sd/- (Anikesh Banerjee) (Dr. M. L. Meena) Judicial Member Accountant Member *GP/Sr.PS* Copy of the order forwarded to:
5 ITA No. 116/Jodh/2022 Hastimal v. ITO
The Appellant 2. The Respondent 3. The CIT 4. The CIT (A) 5. The DR 6. Guard File Assistant Registrar Jodhpur Bench
