ESSKAY NIWAS PRIVATE LIMITED,KOLKATA vs. ITO, WARD 10(2), KOLKATA, KOLKATA

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ITA 3043/KOL/2026Status: DisposedITAT Kolkata28 October 2026AY 2012-20135 pages
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What did the Tribunal hold?

The Tribunal condoned the delay of 270 days in filing the appeal, citing the Supreme Court's decision in Collector, Land & Acquisition vs. Mst. Katiji & Others, emphasizing a liberal approach to condoning delay when supported by justifiable reasons to ensure substantial justice. Regarding the merits, the Tribunal noted that the Ld. CIT(A)'s order was ex-parte, and the assessee had not participated in the proceedings. Furthermore, the Tribunal observed that the Ld. CIT(A) had not decided all grounds of appeal on their merits. Even before the Assessing Officer, the assessee had not made full compliance. In the interest of justice, the Tribunal restored the issue to the file of the Assessing Officer for de-novo assessment. The Assessing Officer was directed to provide an opportunity of being heard to the assessee and to issue notices and communicate through the assessee's new email ID: 'esskayniwas99@rediffmail.com'. The assessee was also directed to participate in the assessment proceedings without fail. The issue of penalty order passed on 24.03.2026 was not expressly decided.

What were the facts?

The assessee, Esskay Niwas Private Limited, filed an appeal before the Income Tax Appellate Tribunal (ITAT) challenging an order dated 23.09.2025 passed by the NFAC, Delhi (Ld. CIT(A)) for Assessment Year 2012-13. There was a delay of 270 days in filing the appeal. The assessee attributed this delay to the fact that the CIT(A)'s order was purportedly communicated only via upload on the e-filing portal or email, with no email being received. The assessee claimed to have discovered the order only in August 2026 upon receiving a recovery communication, leading to the subsequent filing of the appeal. The original assessment order was passed under Section 144/147 on 28.10.2019.

What were the issues?

1. Whether the delay of 270 days in filing the appeal before the ITAT should be condoned, considering the reasons provided by the assessee. (Question of fact) 2. Whether the order passed by the Ld. CIT(A) was ex-parte and in violation of the principles of natural justice, and if so, what relief should be granted. (Question of mixed law and fact, turning on principles of natural justice and procedural fairness under the Income Tax Act, 1961). Assessee's contentions: The assessee argued that the CIT(A)'s order was ex-parte, as it was not properly served, and the assessee was unaware of it until August 2026. The assessee contended that the CIT(A) did not decide all grounds of appeal and that the order was passed in violation of natural justice. The assessee sought a remand to the Assessing Officer for de-novo assessment. The assessee relied on the Supreme Court's decision in Collector, Land & Acquisition vs. Mst. Katiji & Others (1987) 167 ITR 471 (SC) for liberal interpretation of delay condonation. Revenue's contentions: The revenue argued that there was no sufficient cause to condone the inordinate delay and sought dismissal of the appeal on grounds of delay and latches. The revenue further contended that the assessee is a chronic defaulter and that the orders passed by the lower authorities were in accordance with law.

Which sections of the Income-tax Act were involved?

Section 250,Section 144,Section 147

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, ‘A’ BENCH,

Before: SHRI YOGESH KUMAR U.S. & SHRI RAKESH MISHRA

For Appellant: Shri Abhishek Bansal, AR
For Respondent: Shri Sandip Kumar De, Sr. DR
Hearing: 26.10.2026Pronounced: 28.10.2026

IN THE INCOME TAX APPELLATE TRIBUNAL, ‘A’ BENCH, KOLKATA BEFORE SHRI YOGESH KUMAR U.S., JUDICIAL MEMBER AND SHRI RAKESH MISHRA, ACCOUNTANT MEMBER ITA No.3043/KOL/2026 Assessment Year: 2012-13 Esskay Niwas Private Limited Vs. ITO, Ward-10(2), Kolkata 0/5, Durgapur Colony, Block-L, New Alipore, Kolkata-700053 [PAN:AAACE5870B] APPELLANT RESPONDENT Appellant by : Shri Abhishek Bansal, AR Respondent by : Shri Sandip Kumar De, Sr. DR Date of hearing : 26.10.2026 Date of Pronouncement : 28.10.2026 O R D E R PER YOGESH KUMAR U.S., JUDICIAL MEMBER: The present Appeal is filed by the Assessee against the order of the NFAC, Delhi ‘Ld. CIT(A)’ for short) dated 23.09.2025, passed u/s 250 of the Income Tax Act, 1961 (“the Act”, for short) for the Assessment Year 2012-13.

2.

There is a delay of 270 days in filing the present Appeal. The Assessee filed an application along with affidavit for condonation of delay narrating the reasons which are reproduced as under: -

“4. That the said appellate order was never served upon the appellant by hand, by registered post, or by SMS. It appears that the order was purportedly communicated only by way of upload on the e-filing portal

ITA No.3043/Kol/2026 Esskay Niwas Private Limited; A.Y: 2012-13 and/ or by email; however, no such email was ever received or delivered to the appellant or its authorized representative.

5.

That I say and believe that the said electronic mail, if at all dispatched, may have been routed to the junk/spam folder of the Appellant’s registered email account and stood automatically deleted upon the expiry of 30 days, as is usual with most email service providers, on account of which the Appellant remained wholly unaware of the passing of the impugned order.

6.

That the appellant had no occasion to check the e-filing portal for the impugned order, being under the bona fide belief that the appeal was still pending, having received neither any notice of hearing nor any adverse communication in this regard for a considerable length of time.

7.

That in consequences of the aforesaid, the Appellant was unable to appear or to file any submission before the Ld. CIT(A)/NFAC, and the appeal came to be dismissed ex-parte on 23.09.2025 on the basis of material already available on record, without the Appellant having had any effective opportunity of being heard.

8.

That the appellant came to know of the impugned order for the first time in the month of August, 2026 upon receipt of a telephonic communication from the office of the Income Tax Department regarding recovery of the outstanding demand raised in consequence thereof. This was the first occasion on which the Appellant became unaware of the passing of the adverse order, and there was no mala fide intent, want of diligence or negligence whatsoever on the part of the Appellant in this regard.

9.

That immediately upon receipt of the said communication, I caused the appellant’s tax consultant to log into the e-filing portal, whereupon it was confirmed that the impugned order had in fact been passed. It was further discovered, upon such verification, that a penalty order dated 24.03.2026 had also been passed ex-parte pursuant to the impugned order.

10.

That upon coming to know of the impugned order, the Appellant, without any further loss of time, engaged counsel and took prompt and immediate steps for the preparation of the present appeal. However, on account of the time taken in collating the records pertaining to the A.Y.

ITA No.3043/Kol/2026 Esskay Niwas Private Limited; A.Y: 2012-13 2012-13, being of considerable antiquity, and the professional pre- occupation of tax consultant, coupled with a medical emergency faced him during the relevant period, the present appeal could be prepared and filed only on 20.08.2026.”

3.

The Ld. AR reiterating the averments made in the Application, sought for condoning the delay in filing the captioned Appeal.

4.

The Ld. DR submitted that, there is no sufficient cause to condone the inordinate delay, thus sought for dismissal of the captioned Appeal on delay in latches.

5.

We have heard both the parties and perused the material. The Hon'ble Supreme Court time and again clarified that the delay in filing the appeal with sufficient cause should be looked into in a liberal way and shall condone the delay. In the landmark decision in Collector, Land & Acquisition vs. Mst. Katiji & Others (1987) 167 ITR 471 (SC), the Hon'ble Supreme Court settled the law that the delay when supported by justifiable reasons, must make way for the cause of substantial justice. Considering the above facts and circumstances, we condone the delay of 270 days in filing the captioned Appeal.

6.

Brief facts of the case are that, an Assessment Order came to be passed u/s 144/147of the Act on 28.10.2019 by making certain additions. Aggrieved by the Assessment Order dated 28.10.2019, Assessee preferred an Appeal before the Ld. CIT(A). The Ld. CIT(A) vide

ITA No.3043/Kol/2026 Esskay Niwas Private Limited; A.Y: 2012-13 Order dated 23.09.2025, dismissed the Appeal of the Assessee. As against the order of the Ld. CIT(A) dated 23.09.2025, Assessee preferred the present Appeal.

7.

The Ld. Counsel for the Assessee submitted that the Assessee could not make proper compliance before the Assessing Officer and before the Ld. CIT(A). The Ld. CIT(A) has not decided all the Grounds of the Appeal of the Assessee and the ex-parte order impugned came to be passed in violation of principals of natural justice. Thus, sought for remanding the matter to the file of the Assessing Officer by communicating the Assessee in its e-mail ID i.e., ‘esskayniwas99@rediffmail.com’.

8.

The Ld. Department's Representative submitted that the Assessee is a chronic defaulter who has not made proper compliance before the Lower Authorities, therefore, both the Assessing Officer as well as the Ld. CIT(A) have passed the respective orders in accordance with law, which requires no interference, thus by relying on the orders of the Lower Authorities sought for dismissal of the Appeal.

9.

We have heard both the parties and perused the material available on record. The impugned order of the Ld. CIT(A) is ex-parte, wherein the Assessee has not participated in the proceedings and the Ld. CIT(A) has not decided all the Grounds of Appeal on its merits.

ITA No.3043/Kol/2026 Esskay Niwas Private Limited; A.Y: 2012-13 Even before the Assessing Officer, Assessee has not made full compliance. In view of the above, in the interest of justice, we deem it fit to restore the issue to the file of the Assessing Officer for de-novo assessment. Needless to say, the Assessing Officer shall provide opportunity of being heard to the Assessee before passing the assessment order in accordance with law. Further, the Assessing Officer is directed to issue notice and make communication to the Assessee through its new e-mail ID i.e., ‘esskayniwas99@rediffmail.com’. The Assessee is also directed to participate in assessment proceedings without fail.

10.

In the result, Appeal of the Assessee is partly allowed for statistical purposes.

Order pronounced on 28.10.2026.

Sd/- Sd/- (RAKESH MISHRA) (YOGESH KUMAR U.S.) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 28.10.2026 DP, PS Copy of the order forwarded to: 1. Appellant 2. Respondent 3. Pr. CIT 4. CIT(A) 5. CIT(DR) MANISH Digitally signed by //TRUE COPY// KUMAR MANISH KUMAR BHOI Date: 2026.10.29 BHOI 12:15:33 +05'30' Page | 5

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