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Facts
The assessee's appeal was dismissed by the NFAC/CIT(A) for non-prosecution due to a delay of 381 days in filing. The assessee claims the delay was unintentional, due to communication issues with email notifications and a lack of awareness of the proceedings.
Held
The Tribunal found the reasons for the delay unconvincing but, considering that justice must be served, decided to remand the appeal to the AO. This is subject to the assessee paying a cost of Rs. 30,000/- to the Prime Minister's Relief Fund.
Key Issues
Whether the delay in filing the appeal should be condoned and the appeal decided on merits, despite a lack of satisfactory explanation and non-compliance with notices.
Sections Cited
147, 148A, 148, 151A, 69, 250
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI
Before: SMT. BEENA PILLAI
Per: Smt. Beena Pillai, J.M.: The Present appeal filed by the assessee arising out of order dated 26/04/2024 passed by NFAC, Delhi for assessment year 2018-19 on following grounds of appeal:
“1. Non-prosecution 1.1. The Commissioner of Income-tax (Appeals) (hereinafter referred to as "the CIT(A)] erred in dismissing the appeal against order dated 26.04.2024 under section 147 of the Income-tax Act, 1961 (hereinafter referred to as "the Act") (hereinafter referred to as "the impugned 2 ITA 3362/Mum/2025; A.Y. 2018-19 Tukaram Vinayak assessment order") for non-prosecution without appreciating that he has no power to dismiss an appeal for non-prosecution and has to decide the appeal on merit; 2. Reopening is bad in law 2.1. The CIT(A) erred in upholding the action of the AO in reopening the case of the appellant for reasons which are wrong, contrary to facts and position in law; 2.2. The CIT(A) erred in upholding the action of the AO in reopening the case of assessee dehors any cogent material/information; 2.3. The CIT(A)/AO failed to appreciate that the notice dated 20.03.2022 under section 148A(b) of the Act, order dated 31.03.2022 under section 148A(d) of the Act and notice dated 31.03.2022 under section 148 of the Act was required to be issued/passed in a faceless manner in accordance with the e-Assessment of Income Escaping Assessment Scheme, 2022 prescribed under section 151A of the Act and therefore,the notice/ order are bad in law. Consequently, the impugned assessment order is liable to be quashed; 2.4. The CIT(A) AO failed to appreciate that the order under section 148A(d) of the Act and notice under section 148 of the Act without a valid sanction are bad in law. The AO failed to appreciate that even if such sanction has been obtained, the same is mechanical in nature and therefore vitiated as no person properly instructed in law would sanction such reopening proceedings based on the existing material. Consequently, the impugned assessment order is liable to be quashed; 3. Addition of Rs. 27,00,000/- under section 69 of the Act: 3.1. The AO erred in making addition of Rs. 27,00,000/- under section 69 of the Act. The reasons given by him for doing so are wrong, contrary to facts and position in law; 3.2. The AO failed to appreciate that the assessee has proved the nature and source of such cash for purchase of immovable property along with the relevant supporting documents. Accordingly, the provisions of section 69 would not be applicable; 3.3. The AO erred in making the aforesaid addition on the alleged count that the assessee has paid cash of such amount to Mr. Prashant Nilawar Rucha Group for purchase of immovable property. The assessee submits that (i) he has acquired the parcel of land directly from the sellers through banking channels (ii) has not paid cash to Mr. Prashant Nilawar / Rucha Group or connected persons for purchase of the said land and (iii) there is no corroborative evidence to support such allegation; 3 ITA 3362/Mum/2025; A.Y. 2018-19 Tukaram Vinayak 3.4. The AO erred in relying on material / statements without providing an opportunity to rebut such material or cross examine such persons whose statements are used against the assessee; 3.5. The CIT(A) / AO failed to appreciate that the assessee does not maintain books of accounts and in the absence of the same, there is no question of applying the provisions of section 69 of the Act; 4. The above grounds/sub grounds of appeal are without prejudice to each other;
5. The appellant craves the leave to add, amend or alter all or any of the grounds of appeal.”
2. At the outset, the Ld.AR submitted that, there was delay of 381 days in filing appeal before Ld.CIT(A). The appeal was dismissed by NFAC/CIT(A) for non-prosecution. The assessee has filed before this Tribunal affidavit, to explain the delay caused in filing appeal before the Ld.CIT(A). The affidavit is scanned and reproduced as under:
4 ITA 3362/Mum/2025; A.Y. 2018-19 Tukaram Vinayak 5 ITA 3362/Mum/2025; A.Y. 2018-19 Tukaram Vinayak 3. The Ld.AR prayed that the delay in filing the appeal may be condoned and the assessee may be granted an opportunity of being heard on merit.
On the contrary, the Ld.DR submitted that, assessee did not appear for the assessment proceedings. He submitted that, all notices were issued to the email ID mentioned in the portal of the assessee and therefore has not satisfactorily explained the delay caused in filing the appeal before Ld.CIT(A). He thus submitted that the appeal is rightly dismissed by not condoning the delay.
I have perused the submissions advanced by both sides in the light of records placed before me.
It is noted that, the assessee is a salaried person and has offered to tax income under the head salary and capital gains and other sources during the year under consideration. Based on an inside portal information, it was noted that assessee carried out certain sale and purchase of listed equity shares through a broker Motilal Oswal financial services Ltd., and incurred short- term capital loss on equity share transactions. The assessee also carried out future options transaction through same broker and earned profit. The Ld.AO accepted these transactions as they were disclosed in the returns filed for the year under consideration. 5.1 The Ld.AO however noted that, assessee also entered into purchase of immovable properties that required necessary verification. The Ld.AO was of the view that assessee invested unexplained cash and the same was added under section 69 of the act.
6 ITA 3362/Mum/2025; A.Y. 2018-19 Tukaram Vinayak 6. It is noted that several notices were issued to the assessee against which there was no compliance. In Form 35 assessee has provided his personal email ID for communicating the notices. In the application for condonation of delay filed before the Ld.CIT(A), the assessee stated that he was not aware whether the notices were sent through email or message as assessee had given email ID of both the tax consultant and himself to the Department on Income tax portal.
Thereafter though the appeal was filed belatedly notices were issued to the assessee on various dates by the Ld.CIT(A) which was further not complied with. I therefore do not find any justification in the reasons mentioned by the assessee for the delay caused in filing appeal before the Ld.CIT(A) and also for not appearing before the Ld. CIT(A) against the notices issued.
However considering the fact that justice has to meet its end, I am of the opinion that the appeal is to be remanded to the Ld.AO subject to payment of cost of Rs.30,000/- which is accepted by the assessee through Ld.AR. I direct the cost to be paid to the Prime Minister’s relief fund and an affidavit of the same may be filed before the Ld.AO showing the acknowledgement of the payment made. The assessee is directed to take due note of the notices issued and to respond to the same without any delay. The Ld.AO is directed to consider the issue on merits de novo and to pass detailed order on merits in accordance with law. Needless to say that proper opportunity of being heard must be granted to the assessee. Accordingly, the grounds raised by the assessee stands partly allowed for statistical purposes.
7 ITA 3362/Mum/2025; A.Y. 2018-19 Tukaram Vinayak In the result the appeal filed by the assessee stands partly allowed for statistical purposes. Order pronounced in the open court on 29/08/2025