K.B. PROCESSING,KOLKATA vs. I.T.O., WARD - 50(6), KOLKATA

Brief facts of the case of the assessee are that the assessee did not file return of income for the AY 2017-18. It has come into notice of the AO that a huge cash deposit Assessment Year: 2017-18 K. B. Processing in the back account particularly during the demonetization period and also during the FY 2016-17 was made. Accordingly, a notice u/s 142(1) was issued to the assessee. The assessee did not file any return in response to the same and he was non-compliant. A show cause has also been issued but no one from the assessee’s side either appear or made in written compliance, as a result of which, the AO assessed the income and added Rs. 39,50,020/-

Aggrieved by the said order, the assessee preferred an appeal before the Ld. CIT(A) wherein the appeal of the assessee has been dismissed on account of delay in filing of the appeal.

The Ld. Counsel instead of arguing into the merit of the case has only submitted that the assessee has to give an opportunity to place his case before the Ld. CIT(A) as the delay caused by the assessee was not intentional rather the copy of the order passed by the AO was come into the notice of the assessee recently when he received the penalty orders. The Ld. Counsel submits that there is no existence of the firm during the year and the order having been sent in the inbox of the of the assessee which was not regularly looked into and was only recently upon receiving call from the Department as the outstanding taxes the same came into the knowledge of the assessee and thereafter he took immediate action. The Ld. Counsel submits that assessee filed an appeal on 29.10.2021 though it ought to be filed on 03.12.2019 but since it has no knowledge of passing order, hence, the delay was therefore not intentional. The Ld. Counsel submits in the interest of justice, assessee has to be given an opportunity to place his case before the Ld. CIT(A) after condoning the delay. The assessee has filed an affidavit to this effect.

Contrary to that the Ld. D.R supports the impugned order.

Upon hearing the Counsel for the respective parties, we have gone through the order passed by the AO as well as Ld. CIT(A). There is no dispute that the order passed Assessment Year: 2017-18 K. B. Processing by the AO is also an ex-parte order. There was no compliance before the AO as well as Ld. CIT(A). The appeal of the assessee has been dismissed on account of delay as the appeal was filed after a delay of 665 days. The Ld. CIT(A) has held in its order that there was no sufficient cause has been mentioned in the condonation petition by the assessee. We have gone through the affidavit filed by the assessee which is as follows- Shakuntala Devi Jain v. Kuntal Kumari [AIR 1969 SC 575], this Court reiterated the following classic statement from Krishna vs. Chathappan [1890 ILR 13 Mad 269]: "... Section 5 gives the courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words `sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant."

Going over the facts of the case and apex court judgment we are inclined to remit back appeal of the assessee to the file to the Ld. CIT(A) for fresh order after condoning the delay.