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Facts
The assessee filed an appeal against an order passed under Section 250 of the Income Tax Act, 1961, which was delayed by 684 days. The assessee sought condonation of delay, supported by an affidavit explaining the reasons for the delay, including issues during the COVID-19 pandemic and difficulty in receiving notices.
Held
The Tribunal condoned the delay after finding sufficient cause, citing the Supreme Court's decision in Collector Land Acquisition, Anantnag Vs. MST Katiji. The Tribunal decided to restore the matter to the Assessing Officer for de novo adjudication on merits, granting the assessee an opportunity to represent their case.
Key Issues
Whether the delay in filing the appeal is justifiable, and whether the matter should be restored to the Assessing Officer for fresh adjudication on merits.
Sections Cited
250, 271(1)(b), 271(1)(c), 44AF, 144, 147
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, MUMBAI “H” (SMC
Before: SHRI SANDEEP SINGH KARHAIL, JM & SHRI GIRISH AGRAWAL, AM
O R D E R
Per Sandeep Singh Karhail, JM :
The assessee has filed the present appeal against the impugned order dated 19/01/2023, passed under section 250 of the Income Tax Act, 1961 (“the Act”) by the learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [“learned CIT(A)”], for the Assessment Year 2013-14.
The present appeal is delayed by 684 days. Along with the appeal, the assessee has filed an application seeking condonation of delay in filing the appeal duly supported by an affidavit sworn by the assessee, submitting as follows: - 2 Tuntun Bhuneshwar Saw “I Was Doing The Business On The Municipal Path. Ulhasnagar. And other Town's and cities Since Long I state and confirms that, this is nothing but, a trade from such sales, we hardly getting income from our hand to mouth out of those sold commodity.
I have no fixed address for sale of commodity since, we did the site where we get the municipal road side.
During the year of Assessment 2013-14, the assessing officer issued a notice according to his view. I have deposited the cash in the bank.
Such notices I have not found received by me personally or through any agent. I have no knowledge about such notices upon such facts no reply being submitted by me to any officer.
1 state that, after receipt of order from A.O., I approached to the consultant Prem Dodeja, he advised to prefer the appeal petition, accordingly, he preferred the appeal petition After that, COVID 19 being started we were unable to do the business or service in Ulhasnagar because of no earning source and not to afford to live at Ulhasnagar thus, we decided to shift at our native place and decided to do some activity for earning source.
I state that, I tried to do some business activity but, I found I will not maintain myself in my native place.
I State that, thereafter, I again came to Ulhasnagar and contacted our earlier parties and decided to conduct the business at Ulhasnagar in the month of October 2024 thereafter, I contacted to our consultant that, I now want to setup my business here at Ulhasugar so far, he stated that, he was contacting me because of some notices being received from income tax department for recovery proceedings. The e-mail id was inapproachable, thus, the papers or orders not found recoverable ultimately we located those papers ie. the order of CIT(A), penalty order u/s.271(1)(b). Penalty order 271(1)(c).
Considering those facts, to meet the ends of justice. I am preferring the appeal before your honor, may be placed beyond the limitation period but prevailed circumstances the appeal being filed late due to such reason.
3 Tuntun Bhuneshwar Saw I am making this affidavit to condone the delay in submissions of our appeal petition upon the above circumstances, the delay not caused intentionally but, caused by above reasons, not to gain anything out of such delay but for want of justice.
What is stated here in above to the best of my knowledge is true and correct and did this affirmations voluntarily.”
We find that the reasons stated by the assessee for seeking condonation of delay fall within the parameters for grant of condonation laid down by the Hon’ble Supreme Court in the case of Collector Land Acquisition, Anantnag Vs. MST Katiji and others: 1987 SCR (2) 387. It is well established that rules of procedure are handmaid of justice. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred. In the present case, the assessee did not stand to benefit from the late filing of the appeal. In view of the above and having perused the affidavit, we are of the considered view that there exists sufficient cause for not filing the present appeal within the limitation period and therefore, we condone the delay in filing the appeal by the assessee and we proceed to decide the appeals on merits.
In this appeal, the assessee has raised the following grounds: - 1) The Learned CIT (A) has erred in confirming the addition done by A.O. of Rs.34, 26,536/- presuming that, all the bank deposit is the income of the assessee.
2) The most of the notices as CIT(A) says issued and the order also be passed in the period of COVID 19 'A PANDEMIC PERIOD' thus, found the A.O. hurried to completing the proceedings during this period, found unjustifiable required to vacate his order.
4 Tuntun Bhuneshwar Saw 3) The order confirmed by the CIT (A) and his lower authority, request to vacate both the orders considering that, the assessee doing the business and out of such receipt, if considered 5% of profit u/s.44AF, the assessee earned below taxable income. For such, he needless to file the returns and pay the tax. Both the A.O. fails to act upon such, hence, both the orders have incorrect and not taxable before the eyes of law. Be considered.
4) The grounds u/r. 46A we place the bank statement for your reference.
5) For condonation of delay, the accountant and the assessee placing his affidavit to be considered at your stage.”
It is evident from the record that the learned CIT(A) has passed the impugned order ex parte due to the non-appearance of/on behalf of the assessee. We further find that even during the assessment proceedings, the assessee could not produce the documents as sought by the Assessing Officer (“AO”) and therefore the assessment was completed on the best judgment basis under section 144 read with section 147 of the Act on the basis of the material available on record. As per the assessee, he has no fixed place of business and notices issued during the assessment proceedings were not served on him or his agent, thus he had no knowledge about such notices. We find that no details were also submitted before the learned CIT(A) and the additions made by the AO were affirmed vide impugned order. In the present appeal before us, the assessee is duly represented by the learned Authorized Representative and wishes to pursue the litigation against the addition made by the AO.
5 Tuntun Bhuneshwar Saw 6. In the facts and circumstances as noted above, we are of the considered view that in the interest of justice and fair play, the assessee be granted one more opportunity to represent his case on merits and produce all the documents in support of his claim. Since in the present case, the assessee neither appeared before the AO nor before the learned CIT(A), we deem it fit and proper to restore the matter to the file of the jurisdictional AO for de novo adjudication on merits after considering all the details/submissions as may be filed by the assessee and after providing due opportunity of hearing to the assessee. The assessee is directed to cooperate in the assessment proceedings and furnish all the details as may be sought by the AO for complete adjudication. As the matter is being restored to the jurisdictional AO for adjudication on merits, the other grievance raised by the assessee in the present appeal does not call for adjudication at this stage. Accordingly, the impugned order is set aside and the grounds raised by the assessee are allowed for statistical purposes.
7. In the result, the appeal by the assessee is allowed for statistical purposes. Order pronounced in the open court on 14/02/2025. (GIRISH AGRAWAL) (SANDEEP SINGH KARHAIL) लेखा सद"य / ACCOUNTANT MEMBER "याियक सद"य / JUDICIAL MEMBER मुंबई/ Mumbai; "दनांक Dated 14/02/2025 Prakash Kumar Mishra, Sr.P.S.(on tour)