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Facts
The assessee filed an appeal against an order passed by the Commissioner of Income Tax (Appeals) for AY 2008-09. There was a delay of 171 days in filing the appeal. The assessee explained the delay was due to issues with email communication and a former CA's incorrect details on the income tax portal.
Held
The Tribunal condoned the delay of 171 days subject to a payment of Rs. 11,000/-. Considering the ex-parte nature of the impugned order and the circumstances, the Tribunal set aside the order and remanded the case back to the Commissioner for a fresh decision, with an opportunity for the assessee to be heard.
Key Issues
Whether the delay in filing the appeal is liable to be condoned and whether the impugned order should be set aside and remanded for fresh adjudication.
Sections Cited
250, 250 of the Income Tax Act, 1961
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, MUMBAI “B” BENCHES :: MUMBAI
Before: SHRI OM PRAKASH KANT & SHRI NARENDER KUMAR CHOUDHRY
This appeal has been preferred by the Assessee against the order dated 30/09/2024 impugned herein passed by the Commissioner of Income Tax (Appeals)-51, Mumbai (in short, ‘Ld. Commissioner’) u/sec. 250 of the Income Tax Act, 1961 (in short, ‘Act’) for the A.Y. 2008-09.
Both these cases having involved identical facts and issues, therefore for the sake of brevity, the same were heard together and are being disposed of by this composite order, by taking into consideration as a lead case, result of which, would be applicable mutatis mutandis to both the appeals under consideration. it is observed that there is a delay of 171 days in filing the instant appeal, on which the Assessee by filing duly sworn affidavit, has demonstrated the reasons for delay, which read as under: -
“1) That against the assessment order dated August 22, 2012 for assessment year 2008-09, an appeal in a physical form was filed by me on September 21, 2012 before the Ld. Commissioner of Income tax (Appeals) ("Ld. CIT(A)").
2) That, at that point in time, there was no column provided to mention the email address in Form No. 35.
3) That before the Ld. CIT(A) I had filed additional ground vide application dated 27.02.2013, 13.05.2013 and 30.07.2013 preliminary written submissions and the Ld. AO had filed a remand report to my additional ground vide letter dated 13.10.2015.
4) That I was not in receipt of the order dated September 30, 2024.
5) That, Mr. Hiren Shah, Chartered Accountant, who initially used to handle my income tax assessment, had updated on the Income tax Portal primary email address as it3@usroofs.com and secondary email address as his email address, namely ca.hirenshah@gmail.com.
6) That Mr. Shah, terminated his association with me in the year 2015 and, thereafter, I have had not received any professional services from Mr. Shah.
7) That the email address that is updated in my income tax returns for the past 3 number of assessment years i.e. assessment years 2023-24, 2024-25 and 2025-26 is account@usrgroup.co.
8) That it3@usroofs.com was not operational since the last 10 number of years and I have no access to the secondary email address that belonged to Mr. Shah.
9) That on account of the above, the various notices issued by the Ld. CIT(A) went unanswered, and the order dated September 30, 2024 under section 250 of the Act was left unattended.
10) That my current Tax Consultant, Mr. Tarun Tripathi, upon accessing my Income tax Portal for downloading Form No. 26AS in the Month of March 2025, discovered that an order dated September 30, 2024 had already been passed under section 250 of the Act.
11) That pursuant to becoming aware of the order dated September 30, 2024, the draft Grounds of Appeals were prepared by Mr. Tripathi in the month of April, 2025 and were settled by the Counsel.
12) That the appeal was filed before this Hon'ble Tribunal on 20th May 2025.
13) I state that it was due to the unintentional mistake that the appeal could not be filed on time. I say that the captioned appeal is delayed not due to any mala fide or deliberate act on the part of the Company but for the reasons explained hereinabove.
14)1 repeat and reiterate the statements and averments made in the accompanying application for condonation of delay
15) I say that whatever stated above is true to the best of my knowledge and belief.”
On the contrary, learned Departmental Representative (DR) refuted the claim of the Assessee.
We have given thoughtful consideration to the reasons stated by the Assessee for condonation of delay to the effect that when the appeal was filed on 21/09/2012 before the Ld. Commissioner against the assessment order dated 22/08/2012, in Form No.35 there was no column provided to mention the email address. And therefore Earlier, erstwhile CA Mr. Hiren Shah, who initially used to handle the income tax assessment of the Assessee on the income tax portal primary email address is it3@usroofs.com and secondary email address as ca.hirenshah@gmail.com. However, Mr. Shah terminated his association with the Assessee in the year 2015 and thereafter Assessee had not received any professional services from Mr. Shah. Admittedly, in the income tax return filed for the A.Ys. 2023-24, 2024-25 & 2025-26, the email address updated is account@usgroup.com.in. The email address given by the Assessee’s previous counsel i.e. it3@usroofs.com was not operational for the last 10 years and the Assessee had no access to secondary email address, as the same also belongs to Mr. Shah.
Thus, on the aforesaid reasons, various notices issued by the Ld. Commissioner went unserved and the impugned order also left unattended. However, latest tax consultant Mr. Tarun Tripathi upon accessing Assessee’s income tax portal for downloading Form No.26AS in the month of March, 2025, discovered about the impugned order dated 30/09/2024 and thereafter the Assessee filed the appeal on 20/05/2025. The delay has been occurred due to unintentional mistake and there was no malafide or deliberate Act on the part of the Assessee company.
The reasons stated by the Assessee for condonation of delay appears to be genuine, bonafide and unintentional, but unsatisfactory, however considering the peculiar facts and circumstances in totality and the specific fact that the impugned order is also an ex-parte and therefore for just and proper decision of the case and substantial justice, we are inclined to condone the delay, but subject to deposit of Rs. 11,000/- (Rupees Eleven Thousand Only) in the Revenue Department under the ‘other heads’ within 15 days from the date of receipt of this order. Thus, the delay of 171 days in filling of this appeal is condoned.
Coming to the merits of the case, as observed above, as claimed by the Assessee that there was no column in Form 35 at the time of filing appeal on dated 21/09/2012, which is not disputed by the Ld. DR. Further, the Assessee has claimed that emails of the erstwhile counsel were updated in the income tax portal, which resulted into non-compliance by the Assessee. Thus, considering the said fact, we are inclined to set aside the impugned order and consequently remand the case to the file of the Ld. Commissioner for decision afresh, suffice to say by affording reasonable opportunity of being heard to the Assessee. Thus, the case is, accordingly, remanded to the file of the Ld. Commissioner for decision afresh.
The Assessee is also directed to update latest address, telephone number and email etc. before this Tribunal as well as before the Ld. JAO and Ld. Commissioner. Further to file written submissions/documents, which would be essentially required for proper adjudication of the issues involved by the Ld. Commissioner. We clarify that in case subsequent default, the Assessee shall not be entitled for any leniency.
Thus, the appeal filed by the Assessee in is allowed for statistical purposes.
2025, the same is also liable to be allowed for statistical purposes, in the same terms.
In the result, both the appeals filed by the Assessee stand allowed for statistical purposes in the same terms.
Order pronounced in the open court on 30.09.2025.