Loading judgment…
Facts
The assessee filed an appeal challenging an ex-parte order passed by the CIT(A) due to non-appearance, which was delayed by 856 days. The delay occurred because the assessee was unaware of the order, as it was sent via email and missed, and they claimed non-receipt of physical notice.
Held
The Tribunal condoned the delay, finding sufficient cause. It held that the CIT(A) erred by passing an ex-parte order without adjudicating the grounds on merits and that an appeal cannot be dismissed for non-prosecution.
Key Issues
Whether the CIT(A) was justified in passing an ex-parte order without adjudicating the appeal on merits, and if the delay in filing the appeal can be condoned.
Sections Cited
250, 54F, 50C
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “H (SMC
Before: SHRI SANDEEP SINGH KARHAILSMT. RENU JAUHRI
Date of Hearing – 03/09/2025 Date of Order - 04/09/2025
O R D E R PER SANDEEP SINGH KARHAIL, J.M.
The assessee has filed the present appeal challenging the impugned order dated 15/10/2022, passed under section 250 of the Income Tax Act, 1961 (“the Act”) by the learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, [“learned CIT(A)”], for the assessment year 2016-17.
In this appeal, the assessee has raised the following grounds: - “1. In the facts and circumstances of the case and in law, the Learned National Faceless Appeal Centre (NFAC) CIT(A) has erred in upholding the action of Ld. Assessing Officer of treating the income arising to firm M/s. Khushal Developers on sale of property owned by the firm, in the hands of appellant who is the partner in the said firm.
2. In the facts and circumstances of the case and in law, the Learned National Faceless Appeal Centre (NFAC) CIT(A) has erred in upholding the action of Ld. Assessing Officer of not allowing the exemption under section 54F disregarding the legal position that when entire amount of sale consideration had been invested in the new house property, entire capital gains would be exempted under section 54F and the provisions of section 50C would not be applicable in calculating the deduction u/s. 54F of the Act.
3. In the facts and circumstances of the case and in law, the Learned National Faceless Appeal Centre (NFAC) CIT(A) has erred in upholding the action of Ld. Assessing Officer of adopting the Stamp Duty Value of Rs. 22,26,000/- as full value of Consideration without referring the valuation of plot of land to Departmental Valuation Officer as mandated by Sub-section (2) of Section 50C of the Act.
4. In the facts and circumstances of the case and in law, the Learned National Faceless Appeal Centre (NFAC) CIT(A) has erred in passing an ex-parte order dated 15.10.2022 under section 250 thereby violating the principles of Natural Justice.”
3. The present appeal is delayed by 856 days. Along with the appeal, the assessee has filed an application seeking condonation of the delay in filing the appeal, which is duly supported by the affidavit executed by the assessee. In the affidavit, the assessee has made the following submissions: – “1. That the impugned order dated 15.10.2022 u/s 250 of the Income-tax Act, 1961 was passed by Ld. National Faceless Appeal Centre, CIT(A) for A.Y. 2016- 17. No physical copy of the impugned order was ever served upon me. The impugned order was sent vide Email which was missed by me as the same was received in spam folder.
2. That in mid of March 2025, my chartered Accountant logged into my income tax e-filing account and checked the status of appeal proceedings. It was only then I became aware of the order dated 15.10.2022 passed under section 250 by the Ld. National Faceless Appeal Centre CIT(A).
3. That it was because of this reason; I could not file appeal within the statutory limitation period of 60 days. Hence, this affidavit is being made in support of my application to the Hon'ble Income Tax Appellate Tribunal, Mumbai to condone the delay in filing of appeal.”
During the hearing, the learned Authorised Representative (“learned AR”), by referring to Form no.35 filed before the learned CIT(A), submitted that the assessee submitted explicitly before the learned CIT(A) that the notices/communication may not be sent by email. The learned AR by referring to para-5 of the impugned order submitted that all the notices were issued during the COVID pandemic. Thus, the learned AR submitted that neither the notices issued during the appellate proceedings were received by the assessee physically, nor was the impugned order sent to the assessee by post. Accordingly, in light of the submissions made in the affidavit and the facts stated above, the learned AR submitted that the delay in filing the present appeal was not intentional, and thus, prayed for condonation of the delay in filing the present appeal. Having considered submissions and perused the material available on record, we are of the considered view that there was sufficient cause which prevented the assessee from filing the present appeal within the prescribed limitation period. Accordingly, we condone the delay and proceeded to decide the appeal on the merits.
We have considered the submissions of both sides and perused the material available on record. In the present case, at the outset, it is evident that the learned CIT(A) has passed the order ex-parte due to the non- appearance of/on behalf of the assessee. We further find that the learned CIT(A) dismissed the appeal filed by the assessee on the basis of non- compliance with notices, without adjudicating the grounds raised by the assessee on their merits, as required under section 250(6) of the Act. We find that in CIT v/s Premkumar Arjundas Luthra (HUF), reported in [2016] 69 taxmann.com 407 (Bombay), the Hon’ble Jurisdictional High Court held that the Commissioner (Appeals) cannot dismiss the appeal on account of non- prosecution of the appeal by the assessee. Consequently, we deem it fit and proper to set aside the impugned order and restore the matter to the file of the learned CIT(A) for de novo adjudication of the appeal on merits. We further direct that no order shall be passed without affording reasonable opportunity of hearing to the parties. The assessee is directed to appear before the learned CIT(A) on all the hearing dates as may be fixed without any default. As the matter is being restored to the file of the learned CIT(A) for adjudication on merits, the other grievances raised by the assessee in the present appeal do not call for adjudication at this stage. Accordingly, the grounds raised by the assessee are allowed for statistical purposes.
In the result, the appeal by the assessee is allowed for statistical purposes. Order pronounced in the open Court on 04/09/2025