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Facts
The assessee's appeal was dismissed by the CIT(A) for being delayed. The assessee contended that the appeal was filed within the time limit or with a minor delay of five days, which should be condoned. The assessee also argued that no proper opportunity was given by the CIT(A) to explain the delay.
Held
The Tribunal condoned the delay of five days in filing the appeal and remitted the matter back to the CIT(A) for a fresh adjudication. The assessee was to be given a reasonable opportunity of being heard.
Key Issues
Whether the appeal was filed within the limitation period and if not, whether the delay should be condoned, and if the CIT(A) provided adequate opportunity to explain the delay.
Sections Cited
250, 143(3), 35, 249(2)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “F” BENCH MUMBAI
Before: SHRI SANDEEP SINGH KARHAIL & SHRI GIRISH AGRAWAL
PER GIRISH AGRAWAL, ACCOUNTANT MEMBER:
This appeal filed by the assessee is against the order of Ld. CIT(A), National Faceless Appeal Centre (NFAC), vide order no. ITBA/NFAC/S/250/2024-25/1070406883(1), dated 18.11.2024, passed against the assessment order by Deputy Commissioner of Income-tax, Circle-1, Thane, u/s. 143(3) of the Income-tax Act (hereinafter referred to as the “Act”), dated 26.12.2016 for Assessment Year 2014-15.
2. Grounds taken by the assessee are reproduced as under: “1. APPEAL DISMISSAL ORDER PASSED BY CIT (A) IS BAD IN LAW AND LAIBLE TO BE QUASHED
Appellant is aggrieved with passing of order U/s. 250 Dismissing the Appeal without considering the facts that there was no delay in filling Appeal as Assessment order was passed by the Assessing officer manually on 26.12.16 then it get entered into DCR and goes to dispatch with demand Notice and thereafter delivery to the Assesse takes 10-15 days' time as such appeal filed on 31.01.17 within 30 days' time from the date of receiving the order. In Form 35 date of order and receipt of order are written the same as 26.12.16 inadvertently which can apparently be seen from date in Assessment order and in Form 35. As such Appeal Dismissal order is bad in Law and liable to be quashed.
APPEAL FILED IN TIME:
The Assessing officer passed Assessment order on 26.12.16 manually. After passing order it takes 10-15 days' time for registering the order, And dispatching And delivering the order to reach in the hands of Appellant. Therefore Appeal filed on 31.01.17 is within limitation period of 30days from date of receiving the order. If for any reason, the appeal filed is still treated and considered delayed, in that case delay is of 5days from date of order and the Appellant requests for condoning the delay else great in justice will be caused to the Appellant and for these facts, the Appellant prays kindly to be taken in consideration to allow one opportunity to Appellant to present her records and explanation against disallowance and addition of Advertisement Expenses legitimately spent as per cigarattes and other tobacco products Act, 2003 in the normal course of business.
Ld. CIT (A) DID NOT RAISE QUERY OF DELAY NOR ISSUED NOTICE FOR REASON OF DELAY.
The Learned CIT (A) has never issued any Notice of Delay and asking the reason of delay and has not given adequate opportunity to the Appellant to explain the fact that Appellant mistakenly wrote the date of order and date of receipt of order the same as 26.12.16 which can be apparently seen in Assessment order and Form 35 and Appellant has rightly written in the point no.14 in Form 35 as there was factually no delay in filling of Appeal. The Learned CIT (A) issued notice Vide No. ITBA/NFAC/F/APL1/2022- 23/1049016881(1) dt: 23/01/23 for submission against the addition of advertisement promotional activities of Rs.3496661 by Assessing officer, where in learned CIT (A) has not taken up issue of delay of appeal and not raised the query about the delay and asked the reason for delay.
NATURAL JUSTICE:
The Learned CIT (A) erred in passing the order dismissing the Appeal without considering the facts and without giving adequate opportunity to the Appellant and thereby violating the principles of Natural Justice and thus appeal Falguni Ajay Panchmatia, AY 2014-15 dismissal of order passed without offering adequate opportunity is in complete violation of principles of natural justice and the same is bad in law and liable to be set aside.”
3. In the present appeal, assessee is aggrieved with the order of the ld. CIT(A), who dismissed it without admitting it on account of delay in filing. According to the assessee, the impugned assessment order is dated 26.12.2016 and even by considering that it was received on the same date, then the appeal ought to have been filed on or before 26.01.2017. However, the appeal has been filed on 31.01.2017, thus effectively there is a delay of only five days in filing the appeal before the ld. CIT(A), though days for despatch and delivery of the impugned assessment order has not been factored in, since impugned assessment order is a manual order. According to the assessee, there is no delay in filing the first appeal. In the first appellate order, ld. CIT(A) notes that there is a delay in filing the appeal which is after 30 days of the receipt of the order without specifying the number of days by which the appeal was delayed. On this alone reason, ld. CIT(A) has dismissed the appeal as not admitted u/s. 249(2) of the Act.
3.1. It is contended before us that ld. CIT(A) never gave an opportunity to the assessee to explain about delay as alleged by him in filing the same. The only notice was issued on 23.01.2023, requesting to furnish a written submission along with supporting documentary evidences in respect of grounds raised by the assessee without calling for any explanation in respect of alleged delay. It is also noted from Form 35 that, assessee deposited the appeal filing fees, vide challan dated 25.01.2017, which falls within 30 days limitation of filing the appeal.
4. Considering the overall factual matrix of the case and observations made in the order of the authorities below, we find it Falguni Ajay Panchmatia, AY 2014-15 appropriate to remit the matter back to the file of ld. CIT(A), by condoning the alleged delay of five days and direct to take up the matter for denovo meritorious adjudication on the grounds raised by the assessee at the first appellate stage. Needless to say, assessee be given reasonable opportunity of being heard and to make any further submissions, if so desired. Assessee is also directed to be diligent in attending the hearing proceedings. Accordingly, grounds taken by the assessee are allowed for statistical purposes.
In the result, appeal of the assessee is allowed for statistical purposes.