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Facts
The assessee's appeals were filed with a significant delay of 326 days. The assessee claimed the delay was due to notices from the CIT(A) being sent to an incorrect email ID, leading to ex-parte orders without the assessee's knowledge.
Held
The Tribunal condoned the delay, finding that the notices were indeed sent to an email ID not provided by the assessee. Consequently, the ex-parte orders of the CIT(A) were set aside, and the matters were remanded for fresh adjudication.
Key Issues
Whether the delay in filing the appeal is to be condoned when notices were sent to an incorrect email address, leading to ex-parte orders, and whether the matter should be remanded for fresh adjudication.
Sections Cited
271(1)(c), 282
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Income Tax Appellate Tribunal, Hyderabad ‘ DB-B ‘ Bench, Hyderabad
Before: Shri Vijay Pal Rao, Vice-Shri Manjunatha, G.
Per Vijay Pal Rao, Vice President These two appeals by the assessee are directed against two separate orders, both dated, 22/11/2023 of the learned CIT (A)-NFAC Delhi, for the A.Ys.2016-17 and 2017-18 respectively.
The assessee has raised the following grounds of appeal for the A.Y 2016-17:
The assessee has raised the following grounds of appeal for the A.Y 2017-18:
4. At the outset, we note that there is a delay of 326 days in filing of these appeals. The assessee has filed an application for condonation of delay which is supported by the affidavit duly signed by the Managing Partner of the assessee. The learned AR of the assessee has submitted that the notice issued by the learned CIT (A) were sent to the email ID not given by the assessee in Form-35 and therefore, the assessee was not aware about the notices issued by the learned CIT (A) and consequent ex-parte order passed by the learned CIT (A). He has submitted that the assessee came to know about the impugned order of the learned CIT (A) only when the Department has sent show-cause notice for levy of penalty u/s 271(1)(c) of the I.T. Act, 1961 on 23/09/2024 and immediately the assessee filed these appeals before this Tribunal. He has referred to the screenshot taken from the ITBA Portal to show that the notices issued by the learned CIT (A) were sent to the email other than the email ID given by the assessee in Form No.35. The learned AR has further pointed out that the show-cause notice for levy of penalty u/s 271(1)(c) of the Act were subsequently sent to the email ID given in Form 35 which were received by the assessee and only then the assessee came to know about the impugned order passed by the learned CIT (A). Thus, the learned AR has pleaded that the delay in filing the appeal is due to the reason that the assessee was not aware or having any knowledge about the impugned order passed by the learned CIT (A) as the same was not served to the assessee till the assessee received a show-cause notice u/s 271(1)(c) of the Act on 23/09/2024. Thus, there is a delay of 326 days in filing these
Page 3 of 8 appeals which is neither intentional nor deliberate but due to the circumstances beyond the control of the assessee. He has pleaded that the delay in filing the appeals may be condoned and the appeals of the assessee may be admitted for adjudication on merits.
On the other hand, the learned DR has submitted that as per Rule 127 of the I.T. Rules, the notice and orders uploaded to the ITBA Portal amounts to proper service and therefore, the reasons explained by the assessee for the inordinate delay of 326 days is not reasonable or sufficient to condone the delay. Thus, he has objected to the condonation of delay.
We have considered the rival submission and carefully perused the relevant material available on record. The assessee has explained the cause of delay in filing the present appeals that the assessee was not aware about the impugned orders passed by the learned CIT (A) because the notices issued by the learned CIT (A) as well as the impugned order were sent to the email ID other than the email ID given in Form 35. At the outset, we note that the learned CIT (A) has sent the notices to the email ID nandyala_associates@yahoo.com whereas the assessee has given the email ID in Form-35 as ramu&co2@yahoo.com. Thus, it is apparent from the record that the notices issued by the learned CIT (A) were sent to an email ID which was not given in Form 35 for the purpose of service of notice or order. We further note that the Assessing Officer issued show cause notice u/s 271(1)(c) of Page 4 of 8 the Act on 23/09/2024 at the email ID given in Form 35 and the assessee has stated in the application as well as in the affidavit that the assessee came to know about the impugned order passed by the learned CIT (A) only when he received the show cause notice issued by the Assessing Officer u/s 271(1)(c) of the Act. Thus, it is manifest from record that on 23/09/2024, the assessee came to know about the impugned order passed by the learned CIT (A) when the Assessing Officer issued the show cause notice issued u/s 271(1)(c). Thus, the assessee has filed these appeals within one month from the date of show-cause notice dated 23/09/2024 when the assessee came to know about the impugned order passed by the learned CIT (A).
As regards the contention of the learned DR that the uploading of notice and orders on ITBA Portal amounts to proper service is concerned, it is pertinent to note that once the assessee has given a specific address/email ID for service of notice/orders, then the authorities ought to have sent notice as well as the order only to the address/email ID given by the assessee in Form-35. Section 282 of the I.T. Act, 1961 contemplates the mode of service of notice or order or any other communication under this Act by delivering or transmitting a copy thereof by post or by such courier as may be provided by the Board or in such manner as authorized under CPC 1908 or in the form of any electronic record as per the Information Technology Act, 2000 or by any other means or transmission of documents as provided by Rules made by the Board in this behalf. The Board has framed the rules for Page 5 of 8 the purpose of service u/s 282, under Rule 127 of I.T. Rules, 1962. As per sub-rule (2) of Rule 127, the communication shall be delivered or transmitted to the address available with the Department. However, as per 1st proviso of sub-rule (2) to Rule 127, the communication shall be delivered or transmitted only to the address furnished by the assessee in writing for the purpose of such communication to the Income Tax Authorities or any person authorized by such authorities issuing a communication. Therefore, once the assessee has given the email ID in Form 35 for the purpose of communication, then the notice by the learned CIT (A) is required to be sent only to that email ID. In the absence of notices sent to the email ID given in Form 35, it would not be regarded as a proper service. Accordingly, in view of the above facts and circumstances as well as in the interest of justice, we condone the delay of 326 days in filing the appeal.
The learned AR has submitted that since the Assessing Officer and the learned CIT (A) have issued notices to some other email ID and the assessee was not aware about the notices issued by the Assessing Officer and the learned CIT (A), therefore, the impugned orders were passed ex-parte by the authorities below. Hence he has pleaded that the matter may be remanded to the record of the learned CIT (A) for fresh adjudication.
On the other hand, the learned DR has no serious objection, if the matter is remanded to the record of the learned CIT (A) for fresh adjudication.
Having considered the rival submission and careful perusal of the record, we find that the learned CIT (A) has dismissed the appeal ex-parte for non-prosecution when the assessee has not responded to the notices issued by the learned CIT (A). Accordingly, by considering the reasons as explained by the assessee for non-participation before the learned CIT (A) that the notices were issued to the email ID other than the email ID given in Form 35, we are of the considered opinion that the assessee may be given one more opportunity of hearing to present its case before the learned CIT (A) who has not passed a speaking order on the merits of the appeals of the assessee. Accordingly, the impugned order of the learned CIT (A) is set aside and the matters are remanded to the record of the learned CIT (A) for fresh adjudication after giving an appropriate opportunity of hearing to the assessee. The assessee is also directed to cooperate with the proceedings before the learned CIT (A) without seeking any adjournment.
In the result, appeals of the assessee are allowed for statistical purposes. Order pronounced in the Open Court on 27th March, 2025.