SATISH SURVE,KALYAN-DOMBIVALI vs. ITO WARD 3(4) KALYAN, KALYAN

Per : Narender Kumar Choudhry, Judicial Member:

This appeal has been preferred by the Assessee against the order dated 23.09.2024, impugned herein, passed by the Ld. Addl/Joint Commissioner of Income Tax (Appeals) (in short
“Ld. Addl./Joint Commissioner”) under section 250 of the Income Tax Act, 1961 (in short ‘the Act’) for the A.Y. 2013-14. Shri Satish Surve

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2. In this case, the assessment order u/s 144 r.w.s. 147 of the Act was passed on dated 03.12.2019 which was challenged by filing first appeal before the Ld. Commissioner on dated
17.08.2020 but with the delay of 219 days from the date of service of intimation of the assessment order on dated
03.12.2019. The Ld. Commissioner therefore considering the delay in filing of first appeal and the fact “that the Assessee though in form no.35 has mentioned that there was delay in filing of the appeal and the grounds for condonation of delay will be submitted at the time of hearing of appeal but the Assessee has not submitted any such grounds or reasons for delay in filing the appeal during the appellate proceedings in spite of affording opportunities”, has construed that the Assessee had no reason or grounds for delayed filing of appeal and consequently dismissed the same in limine on the point of limitation.

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4. Heard the ld. DR and perused the material available on record. The assessment order under consideration was passed on 03.12.2019 which is stated to be served upon the Assessee on 12.12.2019 and therefore the Assessee was supposed to file first appeal before the Ld. Commissioner on or before
11.01.2020 i.e. within 30 days from the date of receipt of the order, however, the Assessee filed the same only on 17.08.2020 i.e. after the delay of 219 days from the service of the assessment order. Admittedly, the Hon’ble Apex Court in suo-moto writ petition (c) nos. 3 of 2022 has excluded the period of limitation ended/expired between 15.03.2020 till
28.02.2020 and therefore the period from 15.03.2020 till
17.08.2020 is liable to be excluded for the point of limitation.
However, from 12.01.2020 to 14.03.2020 the delay can be construed as 64 days. Considering the peculiar facts and circumstances in totality and the delay as miniscule and the fact that from March 2020 onwards the Covid 19 period was started, the delay in filing of the appeal before the Ld.
Commissioner is condoned and the case is remanded to the file of the Ld. Commissioner for decision on merit, suffice to say by affording reasonable opportunity of being heard to the Assessee. Thus, the case is remanded to the file of the Ld.
Commissioner accordingly.
Shri Satish Surve

Order pronounced in the open court on 16.01.2025. (NARENDER KUMAR CHOUDHRY)
JUDICIAL MEMBER

* Kishore, Sr. P.S.

Copy to: The Appellant
The Respondent
The CIT, Concerned, Mumbai
The DR Concerned Bench

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By Order

Dy/Asstt.