SEBASTIAN FRANCIS CHALISSERY,MUMBAI vs. ITO, VASHI, NAVI MUMBAI

1. 1. The present appeal preferred by the Assessee is directed against the order, dated 19/02/2025, passed by the National Faceless Appeal Centre (NFAC), Delhi [hereinafter referred to as ‘the CIT(A)’] under Section 250 of the Income Tax Act, 1961 [hereinafter referred to as ‘the Act’] whereby the Ld. CIT(A) had dismissed the appeal against the Assessment Order, dated 23/12/2019, passed under Section 144 of the Act for the Assessment Year 2017-2018.

On the facts and in the circumstance of the case, unless the matter is adjudicated on merits, the appellant may suffer an unjust and unbearable tax burden despite having a reasonable and bonafide explanation supported by facts.

Cash deposited amounting to Rs.13,00,000 was out of prior withdrawals of Rs.15,00,000/- made between August and October 2016 for appellant’s daughters intended marriage and personal needs. Subsequent redeposit of unutilized cash during demonetisation period cannot be treated as unexplained.”

We have perused the material on record and have considered the rival submission.

On perusal of record, we find that there was delay of 617 days in filing the appeal before the CIT(A). Though the Assessee had filed affidavit explaining the aforesaid delay the CIT(A) declined to condoned the delay on the ground that the Assessee had failed to show that the delay was caused for reasons beyond the control of the Assessee. During the course of hearing the Learned Authorized Representative for the Assessee submitted that the Assessee had a good case on merits and that the Assessing Officer did not grant 2 Assessment Year 2017-2018 opportunity to the Assessee to substantiate that the delay in filing the appeal was on account of reasons beyond the control. He submitted that the Assessee did not receive the correct legal advice while pursuing the assessment/appellate proceedings and therefore, requested that the grounds raised by the Assessee be considered on merits. Per Contra the Learned Departmental Representative supported the order passed by the CIT(A) and submitted that the Assessee had failed to make out a case for condonation of delay in filing appeal before the CIT(A) and therefore, the question of examining the merits during the present proceedings did not arise.

On perusal of the impugned order, we find that the appeal was instituted by the Assessee on 30/09/2021 against the Assessment Order dated, 23/12/2019 passed under Section 144 of the Act. The aforesaid appeal was dismissed ‘in limine’ since the Learned CIT(A) had declined to condone the delay in filing the appeal. On perusal of the order impugned, we note that there was no allegation that the Assessee was negligent in pursuing the appeal. The CIT(A) had recorded that the Assessee had failed to take due care while pursuing the tax proceedings. We note that there is nothing on record to suggest that before drawing the aforesaid inference, the Assessee was confronted by the CIT(A). Accordingly, we accept the contention of the Assessee that the CIT(A) had failed to grant to the Assessee any opportunity to being heard in relation to reasons for delay in filing the appeal. Therefore, given the facts and circumstances of the present case, we deem it appropriate to set aside the impugned order, dated 19/02/2025, passed by the CIT(A) with the directions to decide the application seeking condonation of delay afresh after granting the Assessee a reasonable opportunity of being heard. The Assessee would be at liberty to file such documents/details/submission in support of the application seeking condonation of delay in filing the appeal before the CIT(A). It is clarified that in case the delay in filing appeal is condoned, the 3 Assessment Year 2017-2018 CIT(A) would adjudicate grounds raised by the Assessee on merits as per law after putting the Assessee to notice and after granting the Assessee opportunity to make submissions on merits. In terms of the aforesaid, Ground No.2 raised by the Assessee is allowed for statistical purposes, while Ground No.1 is dismissed having been rendered infructuous.

In result the appeal preferred by the Assessee is allowed for statistical purpose.