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Facts
The assessee's appeals were filed against orders that dismissed their appeals for being filed beyond the limitation period. The assessee claimed non-receipt of notices due to an address change, leading to a delay in filing the appeal before the CIT(A).
Held
The Tribunal held that the CIT(A) should have issued a show cause notice to the assessee before dismissing the appeal on grounds of delay. The matter was set aside to the CIT(A) to decide afresh after considering the assessee's explanation regarding the delay.
Key Issues
Whether the CIT(A) erred in dismissing the appeal on account of delay without issuing a show cause notice to the assessee?
Sections Cited
250, 147, 144, 144B, 69, 115BBE, 249(2), 271(1)(c)
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Income Tax Appellate Tribunal, ‘G’ BENCH
Before: SHRI VIKRAM SINGH YADAV & SHRI RAHUL CHAUDHARY&
आदेश / O R D E R PER VIKRAM SINGH YADAV (A.M): These two appeals have been preferred against the impugned orders dated 20.12.2024 and 26.12.2024 by the Ld. Commissioner of Income–tax(Appeals)/ National Faceless & 340/MUM/2025 Yogita Yashwant Baing Appeal Centre (NFAC) [hereinafter referred to as the “CIT(A)”] u/s. 250 of the Income-Tax Act, 1961 [hereinafter referred to as "Act"] for the Assessment year [A.Y.] 2016-17. Both these appeals were heard together and are being disposed off by this consolidated order.
2. Briefly the facts of the case are that the assessment order was passed u/s. 147 r.w.s 144 r.w.s 144B of the Act vide order dated 29.02.2024 wherein the AO has brought to tax a sum of Rs. 55,64,000/- u/s. 69 r.w.s 115BBE of the Act, Rs. 4002/- under the head “capital gains” and Rs. 10,22,547/- under the head “salary” and assessed income was determined at Rs. 65,90,576/-.
Being aggrieved, the assessee carried the matter in appeal before the Ld. CIT(A) who has since dismissed the appeal filed by the assessee holding that the appeal filed by the assessee is not in conformity with the provision of section 249(2) of the Act and no sufficient cause has been shown for condonation of delay in filing the appeal.
Against the said findings and order of the Ld. CIT(A), the assessee is in appeal before us.
During the course of hearing, the Ld. AR submitted that the assessee didn’t receive any of the notices issued by the AO due to change of her address and even the assessment order & 340/MUM/2025 Yogita Yashwant Baing was not received by her and it was only during the proceeding for the subsequent assessment year wherein the refund of the assessee was sought to be adjusted, the assessee came to know of passing of the assessment order for the impugned assessment order by the AO and as soon as he was served with the copy of the assessment order on 21.08.2024, the assessee has filed the appeal before the Ld. CIT(A) on 23.08.2024. It was accordingly submitted that there was no delay in filing the appeal before the Ld. CIT(A) appeal. Further, it was submitted that no show cause has been given by the Ld. CIT(A) allowing the assessee the necessary opportunity to explain the relevant facts and the reason why the appeal couldn’t be filed earlier. It was accordingly submitted that in the interest of substantial justice, the matter maybe remitted to the file of the AO as even the assessment order has been passed ex-parte by the AO.
Per contra, the Ld. DR was heard who has taken us through the impugned order and it was submitted that the Ld. CIT(A) has recorded his findings wherein he has stated that from the perusal of the ITBA, it is apparent that the assessment order has been passed on 29.02.2024 and served through registered e-mail and the assessee has not stated any reason along with supporting evidence w.r.t receipt of the assessment order on 21.08.2024 as so claimed and therefore the claim that the assessment order was served on 21.08.2024 was not found acceptable and therefore the Ld. CIT(A) has held that there is & 340/MUM/2025 Yogita Yashwant Baing clearly a delay in filing the appeal and in absence of reasonable cause explaining the delay, the appeal has rightly been dismissed on account of delay in filing. He accordingly supported the order and the findings of the Ld. CIT(A).
We have heard the rival contentions and perused the material available on record. The claim of the assessee is that even though the order has been passed on 29.02.2024, however the same has been actually served on her on 21.08.2024 and thereafter, the appeal have been filed within the statutory limitation on 23.08.2024. However, as per the Ld. CIT(A), the assessee has not brought on record any supportive evidence w.r.t the service of the assessment order on 21.08.2024. It is also a matter of record that no show cause has been issued by the Ld. CIT(A) seeking the necessary explanation from the assessee as to why there is a delay in filing the present appeal and in support of her contention that she was actually served with the assessment order only on 21.08.2024. In light of the same, we find that before dismissing the appeal so filed by the assessee, the assessee should have at least been issued a show cause and put to notice seeking the necessary explanation before the assessee’s appeal was dismissed by the Ld. CIT(A). In light of the same, we set aside the matter to the filed of Ld. CIT(A) to decide the matter afresh after taking into consideration the explanation so submitted by the assessee in support of non-service of the assessment order on time on account of change of her address, the delay, if any in filing the present appeal and where the same is found to be in order,
In the result, the appeal of the assessee is allowed for statistical purposes. the matter relates to sustenance of penalty u/s. 271(1)(c) of the Act. Since we have set aside the matter in context of quantum proceedings to the file of Ld. CIT(A), the impugned matter is also set aside to the file of Ld. CIT(A) to decide the same afresh as per law after providing reasonable opportunity to the assessee.
In the result, both the appeals of the assessee are allowed for statistical purposes.
Order pronounced in open court on 21.03.2025.