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Facts
The assessee filed a belated appeal before the ITAT due to a delay of 133 days. The delay was attributed to miscommunication between the Senior Accountant and Chartered Accountant, leading to an ex-parte order, and a personal family reason. The assessee sought condonation of the delay.
Held
The Tribunal condoned the delay in filing the appeal, acknowledging the reasons provided in the affidavit. The appeal was admitted for hearing on merits. The matter was restored to the file of the AO for a fresh decision, providing an opportunity of hearing to the assessee, with a cost of Rs. 2000 imposed for the delay.
Key Issues
Whether the delay in filing the appeal before the ITAT should be condoned, and if so, whether the matter should be restored to the AO for fresh adjudication on merits.
Sections Cited
250, 143(3), 144
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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 28.06.2024 passed u/s 250 of the Income Tax Act, 1961 (‘the Act’), by the National Faceless Appeal Centre, Delhi (NFAC) for the assessment year 2020-21.
2. 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, mentioned herein below:
1. I say that, the assessee Trust return of income was filed on 21/01/2021 for A.Y. 2020-21 declaring total income of Rs. NIL. Pursuant to assessment u/s. 143(3) of the Act order was passed on 28/9/2022. Aggrieved by the assessment order the assessee had filed the appeal before Ld CIT(A)/ NFAC.
I say that, Mr. Radheshyam Sharma aged 63 years Senior Accountant of Trust since last more than 24 years had been co-ordinating with Chartered Accountant Shri Dhananjay Sharma to comply the notices of hearing received from Income Tax Department. Due to miscommunication between the Senior Accountant and Chartered Accountant the notice of hearing remained unattended which led to passing of exparte order. It was only after subsequent enquiry and while checking the portal it was revealed that order was passed. Immediately the assessee sought to take remedial action to file appeal before ITAT. Thus due to above reasons there was delay in filing the present appeal in time.
3. I say that, the Trust filed a belated appeal before Hon ITAT on 7/1/2025, against the order passed by the National Faceless Appea! Centre (NFAC) dated 28/06/2024. The last day for filing an appeal before Hon ITAT was 27/08/2024. Thus, there was a delay of 133 days in filing the appeal
I further say that, due to my personal family related reason being marriage of my daughter, I was also not able to follow- up the said proceeding. For which I seek pardon and request your Honour to take a lenient view in the matter.
I say that it was only around December, 2024 when the chartered Accountant Shri Dhananjay Sharma visited the portal the CIT(A) order was found on portal dated 28.06.2024 for the AY 2020-21 as ex-parte order was u/s 144 of the Act.
6. I further say that, the delay was neither deliberate nor with any malafide intention. The default, if any, was due to the bonafide reason and circumstances explained herein above.
7. I say that, the delay may be condoned and matter may be decided on merits in interest of justice.
I further say that whatever is stated in above para’s are true to best of my knowledge and I believe it to be true.
3. Therefore after having heard the arguments and considering the facts as mentioned in un-rebutted affidavit 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).
We condone the delay in filing the present appeal and consequently admit the appeal to be heard on merits.
4. From the records, we noticed that assessee was ex- parte before the CIT(A) on account of the same reasons mentioned above and could not attend the proceedings before the Ld. CIT(A) and even the assessee had not satisfied any replies to the show cause notice by AO in spite of availing number of opportunities.
5. Be that as it may, in our view the interest of justice would be met in case the isses / 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 Ld.AO. 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 AO for deciding it afresh on merits by providing opportunity of hearing to the parties. However, for the lethargic and negligent action on the part of the assessee, a cost of Rs. 2000 is imposed on the assessee and the same shall be deposited in the Prime Minister’s Relief Fund and copy of the same shall be submitted to the CIT(A) for proof and thus the appeal of the assessee is restored to the file of CIT(A) to decide it afresh by providing one more opportunity of hearing to the assessee. The assessee shall not seek any adjournment on frivolous grounds and remain cooperative during the course of proceedings and the appeal of the assessee is thus allowed for statistical purposes.
Before parting, we make it clear that my decision to restore the matter back to the file of the AO shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by the AO 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