UMESH TIWARI,INDORE vs. INCOME TAX OFFICER -1(2), INDORE

The appeal filed by the assessee before this Tribunal for assessment year 2018-19 is barred by limitation by 408 days. The assessee has filed the petition for condonation of delay requesting the Bench to condone the delay. The Ld. Counsel for the assessee submitted that delay in filing the appeal before the Tribunal has occurred due to the mistake of the tax consultant and communication gap between assessee and tax consultant. The Ld. Counsel in this regard, invited our attention, towards the affidavit filed in this regard, citing the reasons of delay of 408 days for filing the appeal, which is reproduced below: “That, an Order under s. 250 of the Income-Tax Act, 1961 has been passed in the case of the appellant, on 17-01-2024, by the learned Commissioner of Income-Tax (Appeals), National Faceless Appeal Centre, Delhi, pertaining to A.Y. 2018-19. 2. That, during the course of the appellate proceedings, the Id. CIT(A) issued a Notice bearing DIN: ITBA/NFAC/F/APL_1/2021-22/1035784198(1) dated 22-09-2021 under s.250 of the Act requiring the appellant to furnish his written submission in respect of appeal preferred by him. 3. That, in response, the appellant duly filed his written submissions along with documentary evidences before the ld. CIT(A) electronically on 23-11-2021. 4. That, after filing of the submissions by the appellant, the Id. CIT(A) did not require any further submission from the appellant and, no further notice of hearing under s.250 of the Act was issued to the appellant. Even the counsel of the appellant, who was attending to the case of the appellant before the Id. CIT(A), could not inform the status of the case. 5. That, on 29-04-2025, the appellant approached the office of CA. Shravan Agrawal of Indore to advise him in his litigation matter for the relevant assessment year, which the appellant was under a bonafide belief that was pending before the Id. CIT(A). Accordingly, the office of CA. Shravan Agrawal, through whom the appeal is being filed by the appellant, logged onto income-tax portal to enquire the status of the appeal filed before the ld. CIT(A) over the e-proceeding tab on the portal and found that the appeal was already disposed- off by the Id. CIT(A) on 17-01-2024 itself. It was further found that the Id. AO, in pursuance of the aforesaid Order of Id. CIT(A), has also passed the Penalty Order under s.270A of the Act on 24-02-2025 thereby imposing a penalty of Rs.64,22,640/- upon the appellant. However, neither the penalty notices nor the Penalty Order could be received by the appellant. Upon further checking the e-proceeding tab, it has been gathered that the penalty notices have been issued by the ld. AO on some email id: 'djncom@gmail.com' which does not belong to the appellant. 6. That, the factum of passing of the Order by the Id. CIT(A) and as also, the Penalty Order passed by the ld. AO could come to the specific knowledge of the appellant only in the circumstances given in para (5) supra. 7. That, although against such Order, an appeal under s.253 of the Income-Tax Act, 1961 was required to be filed on or before 17-03-2024 in accordance with the provisions of section 253(3) of the Income-Tax Act, 1961. However, the appellant was completely unaware of the passing of the Order by the Id. CIT(A) in his case. It would be pertinent to note that after making submission by the appellant on 23-11-2021, the Id. CIT(A) did not issue any further notice and directly passed the impugned Order on 17-01-2024 after an elapse of 2 years without first giving any opportunity to the appellant. 8. That, upon getting aware of the passing of the impugned Order, the appellant has immediately filed the appeal before the Hon'ble Bench. The aforesaid process has resulted in an inadvertent delay of 408 days in filing the appeal before this Hon'ble Bench. The appellant is prepared to file an affidavit affirming on oath, the facts contained in this application. In view of the above, it is most humbly prayed that considering the reasons stated hereinabove, in order to meet the ends of justice, the inadvertent delay so caused in filing the present appeal by the appellant may kindly be condoned and the appeal which is being filed separately may kindly be admitted and oblige.” 3. The Ld. Counsel for the assessee, therefore submitted that the assessee has explained the sufficient cause for the delay in the above affidavit and therefore the delay in filing the appeal before this Tribunal, may be condoned in the interest of justice.

On the other hand, Ld. DR for the revenue submitted that assessee has failed to prove the sufficient cause and therefore delay should not be condoned.

We have heard, both the parties on this preliminary issue and noted that because of the mistake of the tax consultant, the assessee should not be penalized. For this reliance is placed on the decision of I.T.A.T., 'C' Bench, Kolkata in the case of M/s. Garg Bros. Pvt. Ltd. & Others vs. DCIT [ITA Nos.2519 to 2521/Kol/2017, order dated 18.04.2018], wherein under similar set of facts and reasons, the Hon'ble Tribunal was pleased to condone the delay of 211 days by holding as under: "3. We have heard both the parties on this preliminary issue. Having regard to the reasons given in the application for condonation of delay, we are of the considered opinion that assessee was under a bona fide belief that the impugned order of Pr. CIT was not appealable before this Tribunal since they were not advised by their Tax Consultants about this legal right. Later on, when a Senior Lawyer advised them to file an appeal, the assessees immediately took steps to file the appeals. Therefore, the delay caused. We note that delay was occurred because of the wrong advice of the Tax Professional for which assessees cannot be penalized. For the ends of justice, we condone the delay and admit the appeal for hearing. Page 3 of 5

We are of the view that provisions of law have to be adhered strictly and that one cannot be allowed to act in leisure and make a mockery of enacted law, because law & provisions are laid down to benefit both sides of litigation. Be that as it may, we have to do justice and the Hon’ble Supreme Court in the case of Collector, Land Acquisition vs Mst. Katiji and others , reported in 167 ITR 471, (1988 SC 897) (7) observes ....

On merit, Ld. Counsel for the assessee pointed out that assessee wants to submit some additional documents and evidences before the Assessing Officer to prove his claim therefore matter may be restored back to the file of the Assessing Officer for fresh adjudication.

On the other hand, the Ld. DR for the Revenue did not raise any objection if the matter is restored back to the file of the Assessing Officer.

Considering the above facts, we note that assessee has not given sufficient opportunity of being heard and could not plead his case successfully before the Ld. CIT(A), despite the fact that Ld. CIT(A) made estimated addition and allowed the appeal of the assessee, partly. However, we note that assessee now wants to submit additional documents and evidences before the assessing officer to prove his claim as genuine. We note that it is settled law that principles of natural justice and fair play require that the affected party is granted sufficient opportunity of being heard to contest his case. Therefore, without delving much deeper into the merits of the case, in the interest of justice, we restore the matter back to the file of assessing officer for de novo adjudication and pass a speaking order after affording sufficient opportunity of being heard to the assessee, who in turn, is also directed to contest his stand forthwith. We hold and direct accordingly. The assessing officer will afford opportunity of being heard to the Assessee before deciding the issue. The Assessee will also be at liberty to let in further evidence to substantiate its case. Therefore, We deem it fit and proper to set aside the order of the Ld. CIT(A) and remit the matter back to the file of the assessing officer to adjudicate the issue afresh on merits. For statistical purposes, the appeal of the assessee is treated as allowed.

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