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Facts
The assessee appealed against an ex parte order by the Ld.CIT(A) which dismissed the assessee's appeal due to a 92-day delay in filing and non-appearance, even though the AO had also passed an ex parte best judgment assessment under Section 144. The assessee claimed not to have received some notices for the CIT(A) hearing, which resulted in the ex parte orders.
Held
The Tribunal condoned both the 17-day delay in filing the appeal before the ITAT and the 92-day delay in filing before the CIT(A), finding reasonable cause and excusable reasons. Citing Supreme Court precedents, the Tribunal set aside the CIT(A)'s order and the AO's ex parte assessment, restoring the matter to the AO for a de novo assessment after hearing the assessee, subject to the assessee paying Rs.10,000/- as cost to the State Legal Aid Authority.
Key Issues
Whether the CIT(A) and AO's ex parte orders were justified given the assessee's explanation for delay and non-appearance, and if the matter should be remitted for a fresh assessment.
Sections Cited
144
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Income Tax Appellate Tribunal, ‘B’ BENCH: CHENNAI
Before: SHRI ABY T. VARKEY & SHRI JAGADISH
आदेश / O R D E R
PER ABY T. VARKEY, JM:
1. This is an appeal preferred by the assessee against the order of the Learned Commissioner of Income Tax (Appeals)/NFAC, (hereinafter referred to as “the Ld.CIT(A)”), Delhi, dated 28.01.2025 for the Assessment Year (hereinafter referred to as "AY”) 2017-18.
At the outset, it is noted that the appeal has been filed belatedly after ‘17’ days and the assessee has filed an affidavit explaining the cause for the delay. From a perusal of the contents of the affidavit and the application filed for condonation of delay, we find that there is reasonable cause for the delay and therefore, we condone the delay of ‘17’ days in filing of the appeal and proceed to hear the appeal on its merits.
The Ld.AR of the assessee brought to our notice that the impugned order passed by the Ld.CIT(A) is an ex parte order on the ground that there was a delay of ‘92’ days which was not explained to the satisfaction of the Ld.CIT(A). Therefore, without admitting the appeal [by holding it as non-maintainable] and taking note that ‘none’ appeared on behalf of the assessee, even after six (6) notices were issued, the Ld.CIT(A) has dismissed the appeal of the assessee. Further, it was also brought to our notice that in this case, the AO has also passed best judgment assessment u/s.144 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act‘) [ex parte order qua assessee]. In the light of the ex parte action of the AO, the assessee relying on the decision of the Hon’ble Supreme Court in the case of TIN Box Co. v. CIT reported in [2001] 249 ITR 216 (SC) prayed for restoring the assessment back to the file of the AO.
Per contra, the Ld.DR doesn’t want us to give one more innings to the assessee.
In his rejoinder, the Ld.AR submitted that assessee didn’t get the last four (4) notices of hearing which prevented the assessee from responding/replying to it which resulted in the AO passing the ex parte order and undertakes to appear and file all the relevant documents/written submissions before the AO/Ld.CIT(A) provided an opportunity is given to him.
Having heard both the parties and after perusal of the records, we note that the impugned order of the Ld.CIT(A) is ex parte order qua assessee. In this regard, the Ld.CIT(A) noted that the assessee has not bothered to appear/respond despite six (6) notices were issued to him; and also failed to furnish any reason for belated filing of appeal by ‘92’ days. Hence, he refused to condone the delay and dismissed the appeal of the assessee. We don’t countenance the action of the Ld.CIT(A); and the assessee is noted to have explained the reasons for the delay in filing of the appeal before the Ld.CIT(A) which we find it to be excusable since it can’t be said to suffer from deliberate inaction, or omission or misdemeanor of his AR. Hence, relying on the decision of the Hon’ble Supreme Court in the case of Collector, Land Acquisition, Anantnag v.
Katiji, [A.I.R. 1987 (SC) 1353], hence, we condone the delay in filing of the appeal before the Ld.CIT(A) and taking note that the assessment order has also been passed ex parte, for the interest of justice and fair play and considering the undertaken given by the Ld.AR and relying on the decision of the Hon’ble Supreme Court in the case of TIN Box (supra), we restore the assessment back to the file of the AO subject to assessee remitting cost of Rs.10,000/- to the State Legal Aid Authority, Hon’ble Madras High Court within three (3) months of receipt of this order; and produce necessary proof of depositing of the same before the AO and thereafter the AO to frame de novo assessment in accordance to law after hearing the assessee.
In the result, appeal filed by the assessee is allowed for statistical purposes.