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Facts
The assessee preferred an appeal against an ex-parte order of the CIT(A) which had affirmed the AO's order. The AO had reopened the case u/s 147 and added Rs. 1,90,00,000/- as unexplained cash credit. The appeal before CIT(A) was dismissed for want of prosecution.
Held
The Tribunal condoned the delay in filing the appeal after noting it was due to a bonafide mistake in calculation. It was held that the appeals before the lower authorities were decided ex-parte due to non-compliance by the assessee. The Tribunal restored the appeal to the AO to pass a fresh order after hearing the assessee.
Key Issues
Whether the delay in filing the appeal should be condoned, and whether the matter should be decided on merit or technicalities, given the ex-parte nature of previous orders.
Sections Cited
250, 143(3), 147, 148, 131, 68
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “D” BENCH: KOLKATA
Before: Shri Rajesh Kumar&Shri Pradip Kumar Choubey]
ORDER / आदेश Per Pradip Kumar Choubey, JM:
This is the appeal preferred by the assessee against the order of Commissioner of Income Tax (Appeals)- NFAC, Delhi (hereinafter referred to as the Ld. CIT(A)] dated 10.08.2023 for AY 2010-11.
Assessment Year: 2010-11 Nipun Agency Pvt. Ltd.
It appears from the report of the registry that the appeal has been filed after a delay of 11 days for this the assessee has filed condonation petition along with affidavit., which are as follows- “i) The present appeal has been preferred by the appellant/ assessee assailing the ex-parte order dated 10.08.2023, rendered by the National Faceless Appeal Centre u/s 250 of the Act for the AY 2010-11, whereby the order dated 31.03.2016 passed by the Learned Assessing officer u/s 143(3) read with Section 147 of the Act has been affirmed. ii) That as per the Act the prescribed limitation period for filing an appeal is 60 days form the date of receipt of the order. In the present case, the assessment order dated 10.08.2023. Consequently, the limitation period for filing the appeal, as stipulated by the Act, extends to 60 days from 10.08.2023. This period, therefore concludes on 11.10.2023. It is within this statutory timeframe that the appeal was required to be filed. iii) That it is respectfully submitted that the aforementioned appeal was filed on 17.10.2023, resulting in a delay of 6 days beyond the stipulated deadline of 11.10.2023. The delay occurred due to an error in the calculation of the days constituting the limitation period. This inadvertent miscalculation led to the appeal being filed slightly outside the permissible timeframe. iv) That in light of the aforementioned circumstances, it is fervently prayed that the delay in filing the appeal be condoned in the interest of justice. The said calculation error, warrants consideration from this Hon’ble Tribunal. It is humbly implored that this Hon’ble Tribunal condone the delay, ensuring that the appellant’s rightly to fair and timely recourse is upheld, in alignment with the principles of equity and justice. v) That it is pertinent to note that the bona fide appellant was prevented from timely filing the appeal due to a genuine cause, namely, the bona fide mistake in calculating the limitation period. The appellant’s intent to comply with the statutory deadline was earnest, and the delay was neither intentional nor due to negligence. Hence, the delay merits condonation to preserve the appellant’s right to a fair hearing. Prayer: In light of the aforementioned circumstances, it is fervently prayed that the delay in filing the appeal be condoned in the interest of justice. Hence, this Hon’ble Tribunal is humbly implored to condone the delay by ensuring that the appellant’s right to fair and timely recourse is upheld, aligning with the principles of equity and justice.”
3. On perusal of the condonation petition, the reason for delay in filing the appeal seems to be genuine and bonafide. The Ld. D.R did not raise any objection in condoning the delay. Keeping in view, the condonation petition as well as judicial pronouncement that the case should be decided on merit not on technical issue, the delay is hereby condoned.
Brief facts of the case of the assessee are that the assessee filed return of income for AY 2013-14 declaring total income at Rs. 1,64,380/-. The case of the assessee has Assessment Year: 2010-11 Nipun Agency Pvt. Ltd. been selected for scrutiny, subsequently on the basis of information received from DCIT, Central-1, Bhopal case of the assessee was reopened u/s 147 of the Act and notices u/s 148 of the Act was issued but notices were sent by speed post returned back unserved with remarks ‘not known’. Further summon u/s 131 were issued to the directors of the assessee company, show cause notices also issued to the assessee but there was against non-compliance, as a result of which, the AO added a sum of Rs. 1,90,00,000/- as an unexplained cash credit u/s 68 of the Act.
Aggrieved by the said order, the assessee preferred an appeal before the Ld. CIT(A) wherein also the appeal of the assessee has been dismissed for want of prosecution.
Being aggrieved and dissatisfied the assessee preferred an appeal before us.
The Ld. Counsel instead of arguing in to the merit of the case has only submitted that no notices had been served to the assessee and the order passed by both the lower authorities are an ex-parte order. His prayer is that the assessee has been given an opportunity to place his case before the AO. The Ld. Counsel submits that the assessee’s concern was originally registered in Kolkata, however, during pendency of appeal, the registered office of the company was transferred to Bhopal. The Ld. Counsel submits that due to this re-location relevant documents necessary for drafting the written submission could not be retrieved, resulting in the appeal being decided ex-parte.
Contrary to that the ld. D.R supports the impugned order.
Upon hearing the submission of the counsel of the respective parties, we have perused the order of lower authorities and find that before the AO there was non- compliance from the end of the assessee company and order passed by the AO is also an ex-parte order. Before the Ld. CIT(A) the order was also passed ex-parte order without discussing the merit of the case, as the Ld. CIT(A) has clearly held that since during the appellate proceedings, there was non-compliance on behalf of the assessee, hence the assessee failed to discharge its onus required section 68 of the Act. Keeping in view the above facts as a result of interest of justice, we are inclined to restore the Assessment Year: 2010-11 Nipun Agency Pvt. Ltd. appeal of the assessee to the file of AO to pass a fresh order after hearing the assessee. The Appeal of the assessee is allowed for statistical purposes. The order of AO as well as Ld. CIT(A) are hereby set aside.
In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order is pronounced in the open court on 16th April, 2025