SHREE SAI BALAJI BUIDCON,MUMBAI vs. INCOME TAX OFFICER, WARD- 29(3)(4), MUMBAI

This is an appeal preferred by the assessee against the order of Ld. CIT(A)-40, Mumbai [hereinafter referred to as the “Ld. CIT(A)”] dated 26.11.2019 for assessment year 2013-14.

At the outset, it is noted that there is delay in filing of appeal before this Tribunal. The assessee has filed Condonation Application for the delay caused. It is noted that the Ld. CIT(A) has passed the order on 26.11.2019 and the assessee had to file the appeal before this Tribunal ordinarily on or before 25.01.2020, however, it has not filed the same; and explained that assessee was not aware of the passing of the impugned order, because it was served upon the email ID of the old tax consultant and not in the email ID which was reflected in the Form No. 35, wherein, the new tax consultant’s Email ID as reflected was P a g e | (A.Y.2013-14) SHREE SAI BALAJI BUILDCON kanti.patel9@gmail.com; and therefore, the assessee was in the dark about the passing of impugned order as well as about the listing of the case before the Ld. CIT(A) for hearing. It is noted that even if the date of impugned order i.e. 26.11.2019 is taken as the date as service, the assessee ought to have filed the appeal before this Tribunal on 25.01.2020. It is noted that after two (2) months i.e. in March, 2020 Covid-19 pandemic struck India and lockdowns were imposed and thereafter, the Hon’ble Supreme Court suo-moto has passed the order extending the limitation period up to 28th February, 2022, wherein, that order, the Hon’ble Supreme Court had given grace period of another three (3) months which resulted in extending the limitation period up to 28th May, 2020. However, the assessee had filed the instant appeal before this Tribunal on 09.01.2023 meaning therein there was delay of 220 days in filing of the appeal before this Tribunal (excluding the period as ordered by the Hon’ble Supreme Court). Taking note of the fact that the impugned order was forwarded to old tax consultant’s Email ID and not to the Email ID stated in the Form No. 35 filed before the Ld. CIT(A), it can be persumed that assessee was not aware of the outcome of the First Appellate order dated 26.11.2019. Therefore, we are inclined to condone the delay of 220 days and admit the appeal of the assessee.

The main grievance of the assessee is against the action of Ld CIT(A) to have passed the impugned order without hearing the assessee and therefore, assessee assails the action of Ld CIT(A) to be bad in law for violation of Natural Justice. Brief facts are that the Ld. CIT(A) had fixed the appeal for hearing on 18.01.2018, 12.02.2018 and 15.11.2019 and thereafter, he noted that the assessee had earlier taken adjournment but did not bother to attend before him. Therefore, he has preceded ex-parte qua the assessee. It is noted that the Ld. CIT(A) has confirmed the addition made by the Assessing Officer (AO) on the ground that there was no supporting documents filed by the assessee to P a g e | (A.Y.2013-14) SHREE SAI BALAJI BUILDCON prove the creditors to the tune of Rs.2,73,20,000/-. Therefore, he confirmed the action of the AO. It is noted that the main grievance of the assessee is that it did not get any notices of hearing from the Ld. CIT(A) since the notices were served on the wrong Email ID and not in the Email ID given in Form No. 35 filed before the Ld. CIT(A) i.e. kanti.patel9@gmail.com. Therefore, since Assessee/Authorised Representative (AR)/(new tax consultant) was in the dark about the proceedings/listing of the case/appeal, he could not appear before the Ld. CIT(A). Per se it is noted that impugned order of Ld CIT(A) is an ex-parte order qua the assessee. Therefore, taking note of the facts noted supra, we are inclined to set aside the impugned order of the Ld. CIT(A) and restore the appeal back to the file of Ld. CIT(A) with directions to adjudicate the grounds of appeal