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Facts
The assessee's appeal before the CIT(A) was dismissed ex parte due to a delay of 424 days. The delay was attributed to notices being sent to an incorrect email address, which prevented the assessee from making submissions. The assessee filed an appeal before the Tribunal with a condonation of delay petition.
Held
The Tribunal condoned the delay, finding sufficient cause. It noted that the CIT(A) dismissed the appeal without dealing with the merits, as no submissions were made. The Tribunal remitted the matter back to the Assessing Officer, directing that the assessee be given a reasonable opportunity to be heard.
Key Issues
Whether the CIT(A) erred in dismissing the appeal ex parte without considering the merits, and if the delay in filing the appeal before the Tribunal was sufficiently justified.
Sections Cited
144, 147, 68, 250, 69A
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Income Tax Appellate Tribunal, “SMC” BENCH MUMBAI
Before: SHRI PAWAN SINGH, JUDICIALMEMBER & SHRI GIRISH AGRAWAL
O R D E R
PER GIRISH AGRAWAL, ACCOUNTANT MEMBER:
This appeal filed by assessee is against the order of Ld. CIT(A), National Faceless Appeal Centre (NFAC), Delhi, vide order no. ITBA/NFAC/S/250/2023-24/1056428866(1), dated 22.09.2023 passed against the assessment order by Income-tax Officer, Ward- 26(2)(3), Mumbai, u/s. 144 r.w.s.147 of the Income-tax Act, 1961 (hereinafter referred to as the “Act”), dated 04.12.2019 for AY 2012-13.
Grounds taken by the assessee are reproduced as under: “1) On the facts and circumstances of the case, the assessment order is null and void as the same is in violation of CBDT Circular No. 19/2019 requiring mandatory DIN. 2) The Honorable Commissioner of Income tax (A) has erred in law as well as on facts in upholding addition on account of cash deposit of Rs 17,92,800/- being treated as Unexplained cash deposit u/s 68 of the Income Tax Act, 1961. 3) That the order passed by the Ld. CIT u/s.250 of the I.T. Act, 1961 was arbitrary. bad in law and unjust.”.
At the outset, it is noted that there is a delay of 424 days in filing the present appeal before the Tribunal, for which a petition of condonation along with affidavit is placed on record. Assessee submitted that while filing appeal before the ld. CIT(A), the email ID was given as “mohammedhasnai08@gmail.com”. However, all the notices fixing the hearing of the appeal sent by ld. CIT(A) were on a different email ID, i.e., noor.associates@yahoo.com which belong to erstwhile consultant of the assessee. Since the erstwhile consultant did not pass on the information of the notices sent for fixing the date of hearing, no compliances could be made by the assessee or by the Chartered Accountant engaged by him. Since the appeal of the assessee before the ld. CIT(A) remained pending for quite a long time, upon enquiry on the IT e-filing portal through his Chartered Accountant, assessee came to know that his first appeal was dismissed vide order dated 22.09.2023 which was an ex parte order. Against this first appellate order, assessee took appropriate action and filed an appeal before the Tribunal along with a petition for condonation of delay.
3.1. Before us, ld. Counsel for the assessee referred to Form No.35 to demonstrate the error committed on account of email ID. He also Mohd Hasnain Mohd Ilyas Ansari, AY 2012-13 referred to screen shots from the Income Tax Portal which evidently demonstrates and establishes that the notices sent by ld. CIT(A) were on a different email ID than as mentioned in the Form No.35, which prevented the assessee from making the required submissions.
3.2. We have considered the petition for condonation of the said delay along with an affidavit. Upon perusal of the same and hearing both sides, we deem it fit to condone the delay on the ground that there was sufficient cause for the said delay. Accordingly, we condone the delay to take up the matter for adjudication.
Further on perusal of the order of the ld. CIT(A), it is noted that assessee did not comply with various dates of hearing fixed for the purpose of disposal of the appeal. No submissions were made on various dates of hearing which ultimately led to dismissal of the appeal by sustaining the addition made by the ld. Assessing Officer in respect of deposit of cash of Rs.17,92,800/- u/s.69A of the Act. Ld. CIT(A) has disposed of the appeal by dismissing it without dealing with the merits of the case, since assessee did not make any submissions in support of his claim.
4.1. Section 250 of the Act provides for procedure to be adopted while disposing of the appeal by the Ld. CIT(A). Sub-section (4) of section 250 of the Act provides that the Ld. CIT(A) may, before disposing of any appeal, make such further inquiry as he thinks fit, or may direct the Assessing officer to make further inquiry and report the result of the same to the Commissioner (Appeals). Further, sub-section (6) provides that the CIT(A) shall pass an order in writing and shall set the points for determination, the decision thereon and the reasons for the decision. The section is reproduced as under:
Mohd Hasnain Mohd Ilyas Ansari, AY 2012-13 “250. Procedure in appeal (1) The 7 Deputy Commissioner (Appeals)] 8 or, as the case may be, the Commissioner (Appeals)] shall fix a day and place for the hearing of the appeal, and shall give notice of the same to the appellant and to the 9 Assessing] Officer against whose order the appeal is preferred. (2) The following shall have the right to be heard at the hearing of the appeal- (a) the appellant, either in person or by an authorised representative; (b) the 10 Assessing] Officer, either- in person or by a representative. (3) The 1 Deputy Commissioner (Appeals)] 2 or, as the case may be, the Commissioner (Appeals)] shall have the power to adjourn the hearing of the appeal from time to time. (4) The 3 Deputy Commissioner (Appeals)] 4 or, as the case may be, the Commissioner (Appeals)] may, before disposing of any appeal, make such further inquiry as he thinks fit, or may direct the 5 Assessing] Officer to make further inquiry and report the result of the same to the 6 Deputy Commissioner (Appeals)] 7 or, as the case may be, the Commissioner (Appeals)]. (5) The 8 Deputy Commissioner (Appeals)] 9 or, as the case may be, the Commissioner (Appeals)] may, at the hearing of an appeal, allow the appellant to go into any ground of appeal not specified in the grounds of appeal, if the 10. Deputy Commissioner (Appeals)] 11 or, as the case may be, the Commissioner (Appeals)] is satisfied that the omission of that ground from the form of appeal was not wilful or unreasonable. (6) The order of the 12. Deputy Commissioner (Appeals)] 13 or, as the case may be, the Commissioner (Appeals)] disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision. (7) On the disposal of the appeal, the 14. Deputy Commissioner (Appeals)] 15 or, as the case may be, the Commissioner (Appeals)] shall communicate the order passed by him to the assessee and to the 16. Chief Commissioner or Commissioner].
5. In view of the above provisions and in the given set of facts, we remit the matter back to file of ld. Assessing Officer. Needless to say, that assessee be given reasonable opportunity of being heard and make his submissions to substantiate the claims. We also direct the assessee to be diligent in attending the hearing proceedings and not to Mohd Hasnain Mohd Ilyas Ansari, AY 2012-13 seek adjournments unless warranted by compelling reasons so as to expedite the disposal. Accordingly, grounds are allowed for statistical purposes.
In the result, appeal of the assessee is allowed for statistical purposes.