OSWALD PEREIRA,BANGALORE vs. INCOME TAX OFFICER, WARD-5(3)(1), BANGALORE

There is a delay of 69 days in filing the appeal by the assessee. It has been submitted in an application for condonation of delay that the passing of the ex-parte order by the NFAC was not known to the assessee and he came to know about the same only when he received show cause notice under section 274 of the Income Tax Act, 1961 (hereinafter called ‘the Act’), dated 01.08.2022, for imposing penalty under section 271(1)(c) of the Act. The delay in filing the appeal is after excluding the period during which the Covid-19 pandemic was prevalent and the period which has to be excluded owing to the decision of the Hon’ble Supreme Court on the issue of excluding period of delay during Covid period for the purpose of Limitation. According to the assessee, after the receipt of the show cause notice dated 01.08.2022, he came to know about the order passed by the NFAC. The appeal was filed on 17.08.2022 immediately after receipt of show cause notice dated 01.08.2022.

I have considered the submissions and I find that the order passed by the First Appellate Authority is an ex-parte order. The appeal before the first appellate authority was filed by the assessee on 15.01.2019. Notice of hearing was issued on 10.06.2019 by the jurisdictional CIT(A) under section 250 of the Act. Thereafter the case was transferred to NFAC. NFAC issued notices on 24.12.2020 and 13.07.2021. The order of the First Appellate Authority does not mention anything about service of these notices. Besides the above, I find that there has been substantial lapse of time between the filing of the appeal by the assessee and the date of two notices issued by the NFAC, which is nearly two years. In the circumstances, I am inclined to hold that the assessee is not aware of the passing of the ex-parte order by the First Appellate Authority. In this regard, I also find that pursuant to the first notice dated 10.06.2019 issued by the jurisdictional CIT(A) under section 250 of the Act prior to the transfer of the case to NFAC, the assessee has filed the written submissions with supporting documents on 28.06.2019. The same has not been considered by the NFAC. In these circumstances, I condone the delay in filing the appeal by the assessee.

I am of the view that the documentary evidence to substantiate the agricultural income earned by the assessee has also been filed by the assessee along with the written submissions filed before the First Appellate Authority and since these documents are required to be considered for deciding the quantum of agricultural income, I set aside the order of the NFAC and remand the case to the First Appellate Authority for a decision on merits after affording due opportunity of being heard to the assessee and considering other evidence brought on record by the Assessee.

In the result, appeal of the assessee is treated as allowed for statistical purposes.