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Income Tax Appellate Tribunal, DELHI BENCH “SMC”: NEW DELHI
Before: SHRI KUL BHARAT
O R D E R PER KUL BHARAT, JM: This appeal, by the assessee, is directed against the order of the learned Commissioner of Income-tax (Appeals)-1, Noida, dated 31.12.2018, pertaining to the assessment year 2010-11. The assessee has raised following grounds of appeal:
“A- Because the Learned CIT (Appeals) failed to appreciate that order dated 26.10.2017 is wrong illegal and against the facts. B- Because the appellant not received any notice of hearing appeal but learned CIT Appeal has not given proper opportunity to the appellant during the course of hearing. C- Because the order appealed against is contrary to the facts, law and principles of natural justice. The appellant craves leave to add delete modify or substitute any or all the grounds of appeal at any appropriate time.”
At the time of hearing no one attended the hearing on behalf of the assessee.
It is seen from the record that for the last so many hearings, no one is attending the Jahangir Alam Vs. ITO hearings on behalf of the assessee. Therefore, the appeal is taken up for hearing in the absence of the assessee and is being decided on the basis of material available on record.
The only effective ground in this appeal is against dismissing the appeal of the assessee in limine on the basis of non-compliance of provisions of Section 249(4)(b) of the Income-tax Act, 1961 ( in short “the Act”). It is seen from the record that the present appeal is barred by time. As per notings of the Registry it is stated that the time bar could not be calculated due to non-mentioning of the date of communication of the order appealed against. It is seen that the present appeal has been filed by the assessee on 18.5.2020. The order sought to be appealed is stated 31.12.2018. It is stated that the order of the CIT(Appeals) was received on 20.8.2019 as per the application of the assessee dated 15.4.2020, requesting for condonation of delay. As per the affidavit, the assessee has stated that the impugned order was received by him on 20.8.2019 and had requested his counsel to prefer an appeal to the Tribunal but the same was not done by him and he had to again request for filing of appeal and was filed on 18.5.2020. It is stated that the delay in filing the appeal may be condoned.
The learned DR opposed the submissions of the assessee made in the form of affidavit and stated that the assessee has been thoroughly negligent and does not need any leniency.
Jahangir Alam Vs. ITO 5. I have heard the learned DR, perused the material available on record.
Looking to the fact that there was spread of corona virus coupled with the fact that the assessee had contacted the lawyer, who failed to file the appeal in time, the assessee has not taken any undue advantage by filing the appeal late and no prejudicial caused to the revenue, therefore, respectfully following the judgment of the Hon’ble Supreme Court in the case of Collector of Land Acquisition Vs. MST.
Katiji & Ors. 167 ITR 471 (SC), the delay in filing the appeal is condoned and the appeal is taken up for hearing on merit.
Heard the learned DR and perused the material available on record. I find that the assessment order was passed ex parte to the assessee and the appeal so preferred was also dismissed by the learned CIT(Appeals) on the ground that the assessee had not complied with the provisions of Section 249(4)(b) of the Act. It is seen that the learned CIT(Appeals) has passed a voluminous order and has noticed that the assessee had filed the appeal on-line. Only Form no. 35 was available on the official web-site of the Department. It was recorded that the impugned assessment order, copy of the demand notice and challan for payment of fee u/s 249(1)(a) of the Act for filing of appeal was not available on record. Therefore, the appellant was required to place the same on the record of the office of the learned CIT(Appeals). The notices sent to the assessee were not responded. Therefore, the learned CIT(Appeals) dismissed the appeal.
Jahangir Alam Vs. ITO 7. It is well settled that no one should be condemned unheard. Therefore, principle of natural justice should be given due consideration while adjudicating the tax dispute. Looking to the facts of the present case I am of the considered view that it would sub-serve the principle of natural justice if the grounds of appeal are restored to the file of learned CIT(Appeals) to decide the same afresh after giving due opportunity to the assessee of being heard. Grounds raised in this appeal are allowed for statistical purposes.
Assessee’s appeal is allowed for statistical purposes. Order pronounced in open court on 9th September, 2022.