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Facts
The assessee filed an appeal against the appellate order of NFAC which dismissed his appeal against the assessment order. The assessee had filed an updated return withdrawing certain deductions after a show-cause notice was issued. The AO treated these deductions as non-genuine and made additions.
Held
The Tribunal held that the CIT(A) erred in dismissing the appeal as not admitted due to a presumed delay without giving the assessee an opportunity to explain. The appeal was restored to the CIT(A) for fresh adjudication after giving the assessee an opportunity to explain the delay.
Key Issues
Whether the CIT(A) was justified in dismissing the appeal as not admitted without providing the assessee an opportunity to explain the delay.
Sections Cited
143(3), 144B, 10(13A), 139(8A)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “SMC” BENCH : BANGALORE
Before: SHRI PRASHANT MAHARISHI
This appeal is filed by Shri Sunil Shigli (the assessee/appellant) for the assessment year 2022-23 against the appellate order passed by the National Faceless Appeal Centre, Delhi (NFAC) [ld. CIT(A)] dated 20.5.2025 wherein the appeal filed by the assessee against the assessment order dated 14.3.2024 passed u/s. 143(3) r.w.s. 144B of the Income-tax Act, 1961 [the Act] by the Assessment Unit [ld. AO] was dismissed.
The assessee is aggrieved and in appeal before us.
The facts show that assessee is an individual and filed his return of income on 20.7.2022 declaring total income of Rs.15,05,250. This return was selected for complete scrutiny for verifying large claim of deduction under Chapter VIA and refund claimed by the assessee. Necessary notices were issued. It was also noted that assessee is a salaried person employed with J.P. Morgan India Services Pvt. Ltd., who has shown salary income of Rs.24,39,684, income from house property at loss of Rs.2 lakh and income from other sources of Rs.13,427. He has claimed a deduction of Rs.7,47,863 under Chapter VIA. Therefore assessee was asked to explain the deduction claimed of Rs.7,47,863 and loss on income from house property wherein interest expenses are claimed as deduction. The assessee submitted the details of the deduction. Assessee was also asked further details of bank account, etc.
When show cause notice was issued that why the above deduction claimed by the assessee should not be withdrawn, assessee filed an updated return wherein he withdrew the claim of exemption of Rs.2,96,280 u/s. 10(13A) of the Act as well as deduction of Rs.5,28,580 under Chapter VIA of the Act. The updated return was filed on 13.12.2023. However as the withdrawal of exemption was not suo motu, but only after issuance of notice u/s. 143(2) of the Act the updated return was not accepted. Therefore the ld. AO while passing the assessment order held that assessee has claimed exemption u/s. 10(13A) of the Act as non-genuine and further the deduction under Chapter VI of the Act of Rs.5,28,580 is also found to be non-genuine, addition of Rs.8,24,860 was made in the assessment order dated 14.3.2024.
The assessee preferred appeal before the CIT(A) wherein it was found that there is a delay of 4 days in filing of the appeal. The ld. CIT(A) held that there is no sufficient cause for not filing the appeal in time and therefore the appeal of the assessee was dismissed as not admitted.
The assessee aggrieved with the same is in appeal before us stating that assessee is presently residing in UK. The assessment order was passed by the AO on 14.3.2024. The due date for filing the appeal before the CIT(A) was upto 13.4.2024 and as the assessee is residing outside India, the assessee could file the appeal only on 17.4.2024 which has caused delay of only 2 days, but the ld. CIT(A) has considered the delay of 4 days and dismissed the appeal of the assessee. It was stated that due to oversight, the assessee did not file any application for condonation of delay before the CIT(A) and in the appeal memo also in Form 35 Col.14, the assessee has stated that there is no delay in filing of the appeal. Even otherwise, it was stated that delay was not wilful and should have been condoned. He submits that if the issue is restored to the file of the ld. AO or the ld. CIT(A), the necessary information would be submitted.
On merits, he referred to the order of the ld. AO and submitted that assessee has filed the updated return which has been accepted by the ld. AO, but once again he has made the addition on the above sum. He submitted that assessee has paid due tax thereon, there is no reason that once again addition of same amount is made.
The ld. DR vehemently supported the order of the ld. AO and submitted that assessee could not have filed the updated return of income for this assessment year as the proceedings for assessment is pending. He referred to the provisions of section 139(8A) proviso (b). Therefore filing of return of income u/s. 139(8A) does not come to the rescue of the assessee. It was further stated that there is no application for condonation of delay filed by the assessee.
We have carefully considered the rival contentions and perused the orders of the ld. lower authorities. At present the issue before us is that the ld. CIT(A) has not condoned the delay of 4 days in filing of the appeal as no sufficient cause was shown by the assessee. In fact, according to Form 35 shown before us, it is apparent that assessee has received the order of the ld. AO on 17.3.2024 which was passed on 14.3.2024 and appeal was filed on 17.4.2024. In Form 35 Col. 14, assessee has submitted that there is no delay in filing of the appeal. On this basis, according to the assessee, there was no delay in filing of the appeal. The ld. CIT(A) dismissed the appeal of the assessee holding that assessment order was passed on 14.3.2024 and appeal was filed on 17.4.2024 and therefore there is a delay of 4 days for which no condonation petition is filed. Accordingly he dismissed the appeal. We find that when assessee says that there is no delay in filing of appeal and the ld. CIT(A) contrary to what is mentioned in Form 35 says that there is a delay in filing of appeal of 4 days, atleast notice to the assessee should have been issued that why the appeal of the assessee should not be dismissed on this ground. In fact, the ld. CIT(A) has presumed that there is a delay of 4 days. According to the assessee, the assessment order was received on 17.3.2024 and the assessee has filed the appeal on 17.4.2024, therefore even if there is a delay, it cannot be more than 1 day. Therefore without confronting the assessee, the ld. CIT(A) has presumed the delay and dismissed the appeal of the assessee. If there is difference of opinion between the assessee and the statement in Form 35 stating that whatever is declared is true to the best of information and belief, the ld. CIT(A) should not have ignored the same and should have atleast issued notice to the assessee. Therefore we restore the appeal back to the ld. CIT(A) with a direction to the ld. CIT(A) to show cause the assessee if there is any delay in filing of the appeal as per Form 35. The assessee should be granted an opportunity to show whether there is any delay or not and if there is any delay, to show sufficient cause for the same. After that if the appeal is admitted, the issue should be decided on the merits of the case after giving the assessee an opportunity of hearing.
In the result, the appeal by the assessee is allowed for statistical purposes.
Pronounced in the open court on this 25th day of September, 2025.