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Facts
The assessee filed an appeal before the CIT(A) nearly 10 years after the assessment order, claiming non-receipt of the original order and late receipt of a duplicate copy. The CIT(A) dismissed the appeal as time-barred without properly adjudicating the condonation of delay and without granting sufficient opportunity to be heard.
Held
The Tribunal held that the CIT(A) erred in dismissing the appeal without proper adjudication of the condonation issue and in breach of natural justice principles. The Tribunal set aside the CIT(A)'s order and restored the matter for fresh adjudication.
Key Issues
Whether the CIT(A) erred in dismissing the appeal as time-barred without considering the condonation of delay and without granting natural justice, and if the appeal was maintainable.
Sections Cited
143(2), 142(1), 144, 249(3), 46A
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, MUMBAI BENCH “SMC” MUMBAI
Before: SHRI OM PRAKASH KANT & SHRI RAJ KUMAR CHAUHAN
ORDER PER OM PRAKASH KANT, AM
This appeal by the assessee is directed against order dated 23.10.2024 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2009-10, raising following grounds:
The Ld. CIT(A) erred in not condoning the delay in filing of appeal and thereby dismissing the appeal as not maintainable without considering the factual matrix of the case and genuine reason of delay.
The Ld. CIT(A) erred in dismissing the appeal without giving 2. The Ld. CIT(A) erred in dismissing the appeal without giving 2. The Ld. CIT(A) erred in dismissing the appeal without giving sufficient opportunity to be heard and that such dismissal is sufficient opportunity to be heard and that such dismissal is sufficient opportunity to be heard and that such dismissal is arbitrary, invalid and against the principles of natural justice invalid and against the principles of natural justice invalid and against the principles of natural justice and ought to be set aside. and ought to be set aside.
The appellant craves leave to add, amend, alter, or delete 3. The appellant craves leave to add, amend, alter, or delete 3. The appellant craves leave to add, amend, alter, or delete any of the above grounds of appeal
. any of the above grounds of appeal.
4. The appellant prays that the cost of filing and pursing this 4. The appellant prays that the cost of filing and pursing this 4. The appellant prays that the cost of filing and pursing this ITAT appeal may be granted as appellant is person of limited may be granted as appellant is person of limited may be granted as appellant is person of limited means and had no financial capacity to file appeal before Your means and had no financial capacity to file appeal before Your means and had no financial capacity to file appeal before Your Good-selves. The CIT(A) order without granting any opportunity selves. The CIT(A) order without granting any opportunity selves. The CIT(A) order without granting any opportunity or or or adjournment adjournment adjournment is is is illegal illegal illegal and and and has has has caused caused caused severe severe severe financial hardship hardship
2. Briefly stated facts of the case are that t ted facts of the case are that the assessee filed his he assessee filed his return of income electronically on 11.08.2009 declaring a total return of income electronically on 11.08.2009 declaring a total return of income electronically on 11.08.2009 declaring a total income of ₹1,82,250/ 1,82,250/-. The case was selected for scrutiny and . The case was selected for scrutiny and statutory notices under the Income statutory notices under the Income-tax Act, 1961 (hereinafter tax Act, 1961 (hereinafter referred to as “the Act”) were issued. The notice under Section “the Act”) were issued. The notice under Section “the Act”) were issued. The notice under Section 143(2) was served by way of affixture at the last known address of 143(2) was served by way of affixture at the last known address of 143(2) was served by way of affixture at the last known address of the assessee. Subsequently, notices under Section 142(1) were the assessee. Subsequently, notices under Section 142(1) were the assessee. Subsequently, notices under Section 142(1) were issued by speed post, which were returned unserved by the postal issued by speed post, which were returned unserved by the postal issued by speed post, which were returned unserved by the postal authorities with the endorsement “party left”. A final opportunity with the endorsement “party left”. A final opportunity with the endorsement “party left”. A final opportunity was provided vide letter dated 08.12.2011, which was also served was provided vide letter dated 08.12.2011, which was also served was provided vide letter dated 08.12.2011, which was also served by way of affixture. As no compliance was forthcoming, the by way of affixture. As no compliance was forthcoming, the by way of affixture. As no compliance was forthcoming, the Assessing Officer proceeded ex parte and completed the assessment Assessing Officer proceeded ex parte and completed the assessment Assessing Officer proceeded ex parte and completed the assessment under Section 144 of the Act by order dated 26.12.2011, making an on 144 of the Act by order dated 26.12.2011, making an on 144 of the Act by order dated 26.12.2011, making an addition of ₹32,00,000/ 32,00,000/- in respect of alleged income from sale of in respect of alleged income from sale of immovable properties. immovable properties.
2.1 The assessee preferred an appeal before the learned CIT(A) on The assessee preferred an appeal before the learned CIT(A) on The assessee preferred an appeal before the learned CIT(A) on 18.03.2021, i.e., nearly ten years after the a 18.03.2021, i.e., nearly ten years after the assessment order. In ssessment order. In support of condonation, the assessee contended that he never support of condonation, the assessee contended that he never support of condonation, the assessee contended that he never received the original assessment order and that a duplicate copy received the original assessment order and that a duplicate copy received the original assessment order and that a duplicate copy was supplied to him only on 16.02.2021, whereafter the appeal was was supplied to him only on 16.02.2021, whereafter the appeal was was supplied to him only on 16.02.2021, whereafter the appeal was promptly filed on 18.03.2021. However, the l promptly filed on 18.03.2021. However, the learned CIT(A) rejected earned CIT(A) rejected the contention, noting that in Form No. 35 filed by the assessee, the contention, noting that in Form No. 35 filed by the assessee, the contention, noting that in Form No. 35 filed by the assessee, column 2(b) (date of order) mentioned 26.12.2011, column 2(c) (date column 2(b) (date of order) mentioned 26.12.2011, column 2(c) (date column 2(b) (date of order) mentioned 26.12.2011, column 2(c) (date of service) also mentioned 26.12.2011, whereas column 15 stated of service) also mentioned 26.12.2011, whereas column 15 stated of service) also mentioned 26.12.2011, whereas column 15 stated that a duplicate order was received that a duplicate order was received on 16.02.2021. The learned on 16.02.2021. The learned CIT(A) observed that no supporting documents were produced to CIT(A) observed that no supporting documents were produced to CIT(A) observed that no supporting documents were produced to substantiate the claim of non substantiate the claim of non-service and that, therefore, the appeal service and that, therefore, the appeal suffered from an unexplained delay of nearly 10 years. Referring to suffered from an unexplained delay of nearly 10 years. Referring to suffered from an unexplained delay of nearly 10 years. Referring to Section 249(3) of the Act an Section 249(3) of the Act and judicial precedents, he held that no d judicial precedents, he held that no sufficient cause was demonstrated, and dismissed the appeal as sufficient cause was demonstrated, and dismissed the appeal as sufficient cause was demonstrated, and dismissed the appeal as non-maintainable by order dated 23.10.2024. maintainable by order dated 23.10.2024. Aggrieved, the assessee is in appeal before the Tribunal by way of grounds raised assessee is in appeal before the Tribunal by way of grounds raised assessee is in appeal before the Tribunal by way of grounds raised as reproduced above. as reproduced above.
3. Before us, the learned Counsel for the assessee filed a Paper the learned Counsel for the assessee filed a Paper the learned Counsel for the assessee filed a Paper Book and drew attention to the fact that the learned CIT(A) issued Book and drew attention to the fact that the learned CIT(A) issued Book and drew attention to the fact that the learned CIT(A) issued only one notice dated 16.10.2024 fixing hearing on 22.10.2024 (PB only one notice dated 16.10.2024 fixing hearing on 22.10.2024 (PB only one notice dated 16.10.2024 fixing hearing on 22.10.2024 (PB pages 4–6). The assessee filed a request for adjournment (PB 6). The assessee filed a request for adjournment (PB 6). The assessee filed a request for adjournment (PB page 8), which was neither expressly rejected nor considered. Instead, 8), which was neither expressly rejected nor considered. Instead, 8), which was neither expressly rejected nor considered. Instead, the learned CIT(A) passed the impugned order on 23.10.2024— the learned CIT(A) passed the impugned order on 23.10.2024 the learned CIT(A) passed the impugned order on 23.10.2024 merely a day after the scheduled hearing merely a day after the scheduled hearing—without granting any without granting any further opportunity. It was thus contended that the appeal had further opportunity. It was thus contended that the appeal had further opportunity. It was thus contended that the appeal had been decided in breach of the principles of natural justice, and that een decided in breach of the principles of natural justice, and that een decided in breach of the principles of natural justice, and that the matter ought to be restored to the learned CIT(A) for fresh the matter ought to be restored to the learned CIT(A) for fresh the matter ought to be restored to the learned CIT(A) for fresh adjudication.
We have carefully considered rival submissions and examined We have carefully considered rival submissions and examined We have carefully considered rival submissions and examined the material on record. The central controvers the material on record. The central controversy pertains to whether y pertains to whether the appeal filed on 18.03.2021 was time the appeal filed on 18.03.2021 was time-barred by nearly a decade barred by nearly a decade or whether it was filed within limitation reckoning the date of or whether it was filed within limitation reckoning the date of or whether it was filed within limitation reckoning the date of service of the duplicate order as 16.02.2021. service of the duplicate order as 16.02.2021.
4.1 The learned CIT(A), instead of resolving this disputed The learned CIT(A), instead of resolving this disputed The learned CIT(A), instead of resolving this disputed question with reference to evidence and material, dismissed the appeal with reference to evidence and material, dismissed the appeal with reference to evidence and material, dismissed the appeal outright, largely on the basis of the conflicting entries in Form No. outright, largely on the basis of the conflicting entries in Form No. outright, largely on the basis of the conflicting entries in Form No.
Further, from the record, it is evident that the assessee did 35. Further, from the record, it is evident that the assessee did 35. Further, from the record, it is evident that the assessee did respond to the notice dated 16.10.2024 by seekin respond to the notice dated 16.10.2024 by seeking an adjournment. g an adjournment. However, without either disposing of that request or granting a However, without either disposing of that request or granting a However, without either disposing of that request or granting a further opportunity, the learned CIT(A) chose to reject the appeal as further opportunity, the learned CIT(A) chose to reject the appeal as further opportunity, the learned CIT(A) chose to reject the appeal as non-maintainable on the very next day. This approach, in our maintainable on the very next day. This approach, in our maintainable on the very next day. This approach, in our considered opinion, amounts to denial of re considered opinion, amounts to denial of reasonable opportunity. asonable opportunity.
4.2 It is a settled principle of law that justice must not only be It is a settled principle of law that justice must not only be It is a settled principle of law that justice must not only be done but must also appear to have been done. The Hon’ble done but must also appear to have been done. The Hon’ble done but must also appear to have been done. The Hon’ble Supreme Court in State of Orissa v. Dr. Binapani Dei State of Orissa v. Dr. Binapani Dei (AIR 1967 SC State of Orissa v. Dr. Binapani Dei 1269) has held that even administrative orde 1269) has held that even administrative orders involving civil rs involving civil consequences must also also conform to the rules of natural justice. In conform to the rules of natural justice. In the present case, the dismissal of the appeal without properly the present case, the dismissal of the appeal without properly the present case, the dismissal of the appeal without properly adjudicating the condonation issue, coupled with failure to grant adjudicating the condonation issue, coupled with failure to grant adjudicating the condonation issue, coupled with failure to grant effective opportunity of hearing, renders effective opportunity of hearing, renders the appellate order the appellate order unsustainable.
4.3 In these circumstances, we deem it appropriate to set aside In these circumstances, we deem it appropriate to set aside In these circumstances, we deem it appropriate to set aside the order of the learned CIT(A) and restore the matter back to his the order of the learned CIT(A) and restore the matter the order of the learned CIT(A) and restore the matter file for fresh adjudication. The learned CIT(A) shall first examine, on file for fresh adjudication. The learned CIT(A) shall first examine, on file for fresh adjudication. The learned CIT(A) shall first examine, on the basis of evidence to be furnished by the assessee, whether ence to be furnished by the assessee, whether ence to be furnished by the assessee, whether sufficient cause exists for condonation of delay under Section sufficient cause exists for condonation of delay under Section sufficient cause exists for condonation of delay under Section 249(3) of the Act. If satisfied, he shall thereafter decide the appeal 249(3) of the Act. If satisfied, he shall thereafter decide the appeal 249(3) of the Act. If satisfied, he shall thereafter decide the appeal on merits, after duly considering the submissions and evidences on merits, after duly considering the submissions and evidences on merits, after duly considering the submissions and evidences that may be filed by the assessee. In case additional evidence is filed by the assessee. In case additional evidence is filed by the assessee. In case additional evidence is sought to be adduced, the procedure under Rule 46A of the Income- sought to be adduced, the procedure under Rule 46A of the Income sought to be adduced, the procedure under Rule 46A of the Income tax Rules, 1962 shall be followed. tax Rules, 1962 shall be followed.
Conclusion: 4.4 In view of the foregoing, Ground No. 1 of the assessee is In view of the foregoing, Ground No. 1 of the assessee is In view of the foregoing, Ground No. 1 of the assessee is allowed. Since the appeal ha allowed. Since the appeal has been restored to the file of the learned s been restored to the file of the learned CIT(A), grounds relating to merits are rendered academic at this CIT(A), grounds relating to merits are rendered academic at this CIT(A), grounds relating to merits are rendered academic at this stage and require no adjudication. stage and require no adjudication.
In the result, appeal of the assessee is allowed for statistical In the result, appeal of the assessee is allowed for statistical In the result, appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open Order pronounced in the open Court on 22/08/2025. /08/2025.