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Facts
The assessee filed an appeal before the Tribunal challenging an order passed by the NFAC. There was a delay of 237 days in filing the appeal, which was attributed to the email and phone numbers on the Income Tax portal belonging to a former Chartered Accountant who failed to notify the company of the order. The delay was condoned upon payment of costs.
Held
The Tribunal condoned the delay in filing the appeal and admitted it for decision on merits. The impugned order of the Ld. CIT(A) was passed ex-parte because the assessee did not respond to notices. The matter was restored back to the file of Ld. CIT(A) for fresh adjudication on merits.
Key Issues
Whether the delay in filing the appeal should be condoned and whether the ex-parte order passed by the CIT(A) needs to be set aside and the matter remanded for fresh adjudication on merits.
Sections Cited
250
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Income Tax Appellate Tribunal, “F” BENCH MUMBAI
Before: HON’BLE SHRI SANDEEP GOSAIN & HON’BLE SHRI PRABHASH SANKAR
Date of Hearing 15.01.2025 Date of Pronouncement 25.02.2025 आदेश / ORDER
PER SANDEEP GOSAIN, JM:
1. The present appeal has been filed by the assessee challenging the impugned order 25.01.2024 passed u/s 250 of the Income Tax Act, 1961 (‘the Act’), by the National Faceless Appeal Centre, Delhi (NFAC) for the assessment year 2011-12.
2. At the outset, we noticed that there is delay of 237 days in filing the present appeal and in this regard an application for seeking condonation of delay has been filed by the assessee. The contents of the same or reproduced here in below.
1. The company has registered office at 401-402, 4th Floor, Viraj Tower, Western Express Highway, Near WEH Metro Station, Andheri East, Mumbai 400 093 and is assessed to tax with PAN AAECM6623J.
For assessment year 2011-12 order was passed by the Learned Commissioner of Income Tax (Appeals), NFAC on 25th January, 2024.
That the email ID and phone number mentioned on the Income Tax site were belonging to the erstwhile Chartered Accountant Shri Prashant Wakhariya and the said Chartered Accountant did not inform the company about passing of any such order.
4. That the email ID and telephone number were changed on 19th October 2024 and that time the company came to know about the order passed by the Learned Commissioner of Income Tax (Appeals), NFAC.
5. That an appeal was filed before the Hon. Income Tax Appellate Tribunal, Mumbai against the order passed by the Learned Commissioner of Income Tax (Appeals), NFAC on 26th November, 2024 and thus the appeal is filed late by 245 days.
3. On the other hand, Ld. DR contested the application filed by the assessee. Therefore, after hearing the parties on this application, we found that assessee has categorically submitted that “to facilitate the hearing of the appeal the email ID and the phone number were given of the chartered accountant handling the case. Due to this, the notices from the Ld. CIT(A) as well as the first appeal order were not within the knowledge of the appellant.”
And this fact has been supported by affidavit, whereas on the contrary, no counter affidavit has been filed to rebut the said factual position.
Be that as it may, since the assessee has mentioned the entire factual position which led to delay in filing the present appeal supported by affidavit. Therefore, keeping in view the principles laid down by Hon’ble Supreme Court in the case of Land Acquisition Collector Vs. Mst. Katiji & Ors., [1987] AIR 1353 (SC) and also keeping in view the cause for delay, we condone the delay in filing the present appeal by imposing cost of Rs.2000 upon the assessee and consequently the application is allowed and the present appeal stands admitted to be decided on merits.
After hearing the counsel for both the parties and after going through the records, we found that the impugned order of Ld. CIT(A) was passed ex-parte as assessee did not respond to any of the notices issued by the Ld. CIT(A). The first notice was issued on 29.11.2019 and the last notice was issued on 09.01.2024 and in between another eight notices on different dates were also issued and served upon the assessee, but still the assessee failed to represent the case. Neither any written submissions, nor any documents as called for were filed before the Ld. CIT(A). Therefore, considering the entire factual position and also keeping in view that the appeal before the Ld. CIT(A) was pending for around five years approximately. Thus, we are of the considered view that there was non-cooperative attitude on the part of the assessee throughout the pendency of the appeal.
Be that as it may, without going into the merits of the admission, in our view, the interest of justice would be met only in case the issues/lis between the parties is decided on merits after providing opportunity of hearing to both the parties. Therefore taking a lenient view after considering the above factual and legal position, we are of the firm opinion that the ends of justice would be met only by restoring the matter back to the file of Ld. CIT(A) who is the direction to decide the same afresh on merits after providing proper and sufficient opportunities to the parties subject to the cost of Rs.8000 imposed upon the assessee for its lethargic and noncooperative actions and in this way, the entire cost of Rs.10,000 (2000+8000) is to be deposited in the Prime Minister Relief Fund within 30 days from the date of receipt of this order and copy of the receipt be placed on record on the file of Ld. CIT(A) for proof. The assessee shall not seek any adjournment on frivolous grounds and shall remain cooperative during the course of proceedings.
Before parting, we make it clear that our decision to restore the matter back to the file of the Ld. CIT(A), shall in no way be construed as having any reflection or expression on the merits of the dispute which shall be adjudicated by the Ld. CIT(A) in accordance with the provisions of law.
In the result, the appeal filed by the assessee is stands allowed for statistical purposes.
Order pronounced in the open court on 25.02.2025.
Sd/- Sd/- (PRABHASH SHANKAR) (SANDEEP GOSAIN) (ACCOUNTANT MEMBER) JUDICIAL MEMBER Mumbai, Dated 25/02/2025 KRK, PS आदेश की �ितिलिप अ�ेिषत/Copy of the Order forwarded to : अपीलाथ� / The Appellant 1. ��थ� / The Respondent. 2. संबंिधत आयकर आयु� / The CIT(A) 3. आयकर आयु�(अपील) / Concerned CIT 4. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, मु�बई / DR, ITAT, Mumbai 5. गाड� फाईल / Guard file. 6. आदेशानुसार/ BY ORDER, स�ािपत �ित //True Copy//
उप/सहायक पंजीकार ( Asst. Registrar) आयकर अपीलीय अिधकरण, मु�बई मु�बई / ITAT, Mumbai मु�बई मु�बई