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Facts
The assessee filed an appeal against an order passed under Section 250 with a delay of 35 days. The delay and the reason for the assessee being ex-parte before the CIT(A) were due to their Chartered Accountant suffering a stroke and being unable to perform duties.
Held
The Tribunal condoned the 35-day delay in filing the appeal, considering the medical emergency and judicial precedents. It restored the matter to the CIT(A) for fresh adjudication on merits, ensuring a fair opportunity of hearing for both parties, without expressing any opinion on the merits of the dispute.
Key Issues
1. Condonation of delay in filing the appeal. 2. Restoration of the matter to the CIT(A) for fresh adjudication on merits.
Sections Cited
250
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Income Tax Appellate Tribunal, “C” BENCH MUMBAI
Before: HON’BLE SHRI SANDEEP GOSAIN & SHRI PRABHASH SHANKAR
Date of Hearing 20.02.2025 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 25.09.2024 passed u/s 250 of the Income Tax Act, 1961 (‘the Act’), by the National Faceless Appeal Centre, Delhi (NFAC) for the assessment year 2021-22.
At the outset, it is noticed that there is a delay in filing the present appeal and in this regard Ld. AR has drawn our attention to the detailed affidavit filed at paper book page No. 67 to 71 and thus after hearing both the parties on the issue of condonation of delay, we noticed that in the affidavit the assessee has specifically pleaded that hearing before first appellate authority was not attended on account of fact that the Chartered Accountant of the company Shri L.W Kale had suffered with stroke during the month of July 2024 and due to this medical emergency he could not attend his office to perform his duties. Ld. AR supported this version by medical report and hospitalization document along with detailed affidavit. Therefore considering this fact and also keeping in view the principle laid down by Hon’ble Supreme Court in the case following cases:
1. Collector Land Acquisition Vs. Kitiji (Mst) (1987) 167 ITR 471 (SC) .
2. Bharat Auto Centre Vs. CIT 282 ITR 366 3. Balakrishnan (N) Vs. Krishnamurthy (M.) (1998) 7 SCC.123 4. Vedabai Alias Vijayantabai Baburao Patil Vs. Shantaram Baburao Patil, [2022] 253 ITR 798 (SC).
Keeping in view of the above facts, we condone thdelay of 35 days in filing the present appeal and consequently the appeal is admitted to be heard on merits.
From the records, we noticed that assessee was ex- parte before the CIT(A) on account of the same reasons that the Chartered Accountant of the company suffered with medical emergency as discussed by us above.
Be that as it may, in our view the interest of justice would be met in case the issues / lis between the parties is decided on merits after providing fair opportunity of hearing to both the parties. Therefore, considering the above factual and legal position, the Bench feels that the ends of justice would be met only if the matter is restored back to the file of the CIT(A). And in case proper and sufficient opportunity is not given to the asessee then in that eventuality the rights of the assessee shall be prejudice. Thus keeping in view the above, factual position, the present appeal of the assessee is restored to the file of CIT(A) for deciding it afresh on merits by providing opportunity of hearing to the parties. The assessee shall not seek any adjournment on frivolous grounds and remain cooperative during the course of proceedings.
Before parting, we make it clear that my decision to restore the matter back to the file of the 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 CIT(A) independently in accordance with law.
In the result, the appeal filed by the assessee is 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