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Facts
The assessee filed an appeal with a delay of 326 days, claiming the delay was due to being 74 years old, involved in agricultural activities, and not receiving the impugned order. The assessee had explicitly opted not to receive communications via email.
Held
The Tribunal condoned the delay, accepting the assessee's explanation as plausible and non-malafide, considering the peculiar facts and circumstances. The appeal was then admitted for adjudication.
Key Issues
Whether the delay in filing the appeal is to be condoned, and whether the case should be remanded to the Assessing Officer for fresh adjudication.
Sections Cited
250, 271AAC, 69A, 115BBE
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, ‘SMC’ BENCH, BANGALORE
Before: SHRI NARENDRA KUMAR CHOUDHRY & SHRI WASEEM AHMED
PER N.K. Choudhry, Judicial Member:
This appeal has been preferred by the Assessee against the order dated 20/12/2023 impugned herein passed by the National Faceless Assessment Centre (NFAC), Delhi/Ld. Commissioner of Income Tax (Appeal) [in short ‘Ld. Commissioner’] u/s 250 of the Income-tax Act 1961 (in short, ‘the Act’) for the assessment year 2017-18. filing of the instant appeal, on which the Assessee has claimed that the Assessee being aged about 74 years after retirement is doing agricultural activities and is away from his place of residence at Tumakuru. The Assessee further Claimed that though the Assessee to the question in Form No. 35 “whether notices/communications may be sent on email”, specifically replied “NO” but still no physical copy of the impugned order or on email was sent to the Assessee and he came to know about the passing of the impugned order only on 8.1.2025, when notice for penalty u/s.271AAC dated 8.1.2025 was served on the petitioner by the Postal Authority on 10.1.2025 and, therefore, the Assessee immediately on 20.1.2015 filed the instant appeal.
The delay occurred in filing of the instant appeal is neither intentional nor malafide but infact, the same is based on the probable and plausible cause and thus leniency may be shown, while allowing the condonation of delay filed by the Assessee.
On the contrary, ld. D.R. refuted the claim of the Assessee by producing various judicial decisions including the decisions of Hon’ble Supreme Court in the case of Rajneesh Kumar & Anr Vs Ved Prakash in S.L.P(Civil) Nos.935-936 of 2021 and the decision of the Co-ordinate Bench of this Tribunal in the case of Shri Prem .
11.6.2025.
Having heard the rival submissions and perusing the materials available on record, we observe that the cases referred to by ld. D.R. having distinguished features, wherein the allegations have been leveled against erstwhile tax consultants.
Herein, the Assessee has demonstrated the fact that inreply to the specific question as mentioned in Form No.35 to the effect “whether notices/communications may be sent on email”, the Assessee has specifically replied ‘NO’ and therefore the Ld. Commissioner was supposed to send the notices and order in physical mode only but not otherwise. Admittedly, ld. Commissioner has not issued any copy of the impugned order in physical mode. Thus, considering the peculiar facts and circumstances of the case, as the Assessee has claimed with supporting affidavit that the Assessee has not received the impugned order and demonstrated the plausible and sufficient cause for the delay involved in filling of instant appeal and, therefore, we are inclined to condone the delay of 326 days. Hence the delay is condoned and the appeal is admitted for adjudication.
. less both the orders passed by the authorities below are ex-parte.
The Assessing Officer vide assessment order dated 25.9.2019 has made the addition of Rs.13,08,100/- being unexplained cash credit under section 69A to be taxed u/s.115BBE of the Act. Though the Assessee being aggrieved with the assessment order has challenged the said addition before the ld.Commissioner, however despite of granting four opportunities, except seeking one adjournment, eventuallymade no compliance. Therefore, the ld. Commissioner by observing that no documentary evidence or details thereof is furnished during the appellate proceedings, upheld the decision of AO. We further observe that the issue involved in the instant case also remained to be adjudicated in its right perspective and proper manner, as the Assesseecould not file any documentary evidence and submissions, therefore, considering the peculiar facts and circumstances in totality for just and proper decision of the case and substantial justice, we are inclined to remand the instant case to the file of the Assessing Officer for decision afresh, suffice to say while affording reasonable opportunity of being heard to the Assessee.
We also direct the Assessee to cooperate in the set aside assessment proceedings and file relevant documents and submissions, which would be essentially, required for proper and just adjudication of the case. We also clarify that in case of subsequent default, the Assessee would not be entitled for any leniency.
In the result, the appeal of the Assessee is allowed for statistical purposes.
Order pronounced in court on 11thday of August, 2025