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Facts
The assessee filed an appeal against the order of the CIT(A) which dismissed their appeal due to delay in filing. The assessee contended that they never received the assessment order, and therefore, there was no actual delay. The Assessing Officer passed an assessment order under section 144 r.w.s. 147 without proper DIN and allegedly without serving the notice or order to the assessee.
Held
The Tribunal held that the CIT(A) erred in dismissing the appeal solely on grounds of delay without considering the assessee's contention of not receiving the assessment order. The Tribunal found that the service of notice and assessment order is crucial and that the Revenue failed to provide evidence of such service.
Key Issues
Whether the CIT(A) was justified in dismissing the appeal on grounds of delay without adjudicating on the merits of the case, especially when the assessee claimed non-service of assessment order and demand notice.
Sections Cited
144, 147, 69A, 156, 288, 250, 249
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, PUNE BENCHES “B” :: PUNE
Before: DR.DIPAK P. RIPOTE & SHRI VINAY BHAMORE
Assessment Year: 2012-13 Vishnu Shekuji Gajare, V The Income Tax Officer, Chikalthana, Jalna Road, s. Ward-1(5), Aurangabad. Aurangabad, Chikalthana I A, Chikalthana Industrial Area S.O, Maharashtra – 431006. PAN: AZPPG9504M Appellant/ Assessee Respondent / Revenue Assessee by Shri Sarang Gudhate – AR Revenue by Shri Manish Mehta – Addl.CIT(DR) Date of hearing 15/05/2025 Date of pronouncement 22/05/2025 आदेश/ ORDER
PER DR. DIPAK P. RIPOTE, AM:
This appeal filed by the assessee is directed against the order of ld.Commissioner of Income Tax(Appeals)[NFAC], under section 250 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’), dated 28.01.2025 for the A.Y.2012-13. The Assessee has raised the following grounds of appeal :
1. Under the facts and circumstances of the case and in law, Ld.
CIT(A)/NFAC has erred in not condoning delay in filing of appeal. Delay in filling appeal be condone and appeal be decided on merits.
Under the facts and circumstances of the case and in law the Learned Assessing Officer erred in passing Assessment order under section 144 of the Income Tax Act 1961 dated 04-12-2019 without quoting mandatory Documentation Identification Number ("DIN"). We find that separate communication dated 04-12-2019 was issued intimating that order passed under Section 144 dated 04-12-2019 for the assessment year 2012-13 contains DIN number, meaning thereby, the DIN was generated subsequent to passing of the order. Thus, the Final Assessment order and Notice of Demand are bad in law, null and void and thus, liable to be quashed.
Under the facts and circumstances of the case and in law, the Learned Assessing Officer has erred by not serving valid notice as specified in section 288 of Income Tax Act. Hence Assessment Order liable to be quashed.
Under the facts and circumstances of the case and in law, the Learned Assessing Officer has erred in not serving valid Demand Notice as issued demand notice is of A.Y. 2017-18. Hence Assessment Order liable to be quashed.
Under the facts and circumstances of the case and in law, the Learned Assessing Officer has erred for not sending assessment order either physically or through registered email. Hence Assessment Order is null and void.
Under the facts and circumstances of the case and in law, the Learned Assessing Office erred on facts as well as in law by making an addition U/s.69A of Rs. 49,71,500/- on account of alleged unexplained money being negative cash in hand.
7. The appellant craves the permission to add, amend, modify, alter, revise, substitute, delete any or all grounds of appeal if deemed necessary at the time of hearing of the appeal.”
Submission of ld.AR : 2. The ld.AR for the Assessee submitted that Assessee had not received Assessment Order. Assessee had also not received notices issued by Assessing Officer. Ld.AR invited our attention to the Affidavit of the Assessee, wherein the Assessee has stated the same facts. Ld.AR submitted that ld.CIT(A) has dismissed the appeal on account of delay. Ld.CIT(A) thought that delay was 1134 days, whereas after exclusion of the Covid-19 period, the delay comes to 419 days. However, there is no actual delay because the Assessment Order was never served on assessee. Assessee obtained the assessment order only when recovery proceedings started. Then, immediately assessee filed appeal before the ld.CIT(A). Ld.AR submitted that in this fact, assessment order may be quashed.
Submission of ld.DR : 3. The ld.DR for the Revenue relied on the order of Assessing Officer and ld.CIT(A). During the hearing on 08.05.2025, we directed ld.DR for the Revenue to submit evidence of service of notice and service of assessment order. This fact is also recorded in the order sheet. Ld.DR filed a letter of the ITO dated 14.05.2025 wherein, ITO has stated as under :
“4. In compliance, the Assessing Officer has reported that, as per records available on the ITBA Portal, the notice under section 148 was sent to the assessee’s email ID satish.gajre@gmail.com and was successfully delivered. A copy of the report furnished by the Assessing Officer is enclosed herewith for the kind perusal of the Hon’ble Bench.”
3.1 Thus, ld.DR has not submitted evidence of service of assessment order dated 04.12.2019. We specifically asked ld.DR whose Email ID is quoted by the ITO and how ITO got the Email ID! Ld.DR could not explain us.
Findings &Analysis : 4. We have heard both the parties and perused the records. It is observed that assessment order u/s.144 r.w.s. 147 was passed on 04.12.2019. In the assessment order, assessing officer alleged that assessee had deposited cash in his bank account and no reply has been filed. The Assessing Officer assessed the income of the assessee at Rs.51,08,849/-. The Assessee filed appeal against the assessment order before ld.CIT(A) on 09.02.2023. Ld.CIT(A) dismissed the appeal on account of delay. The relevant Paragraph 13 and 14 are reproduced as under : “13. In light of the aforementioned principles, I am of the considered view that the appellant has failed to establish sufficient cause to justify the delay in filing the appeal. The appellant has not demonstrated that any event or circumstance arose before the expiration of the limitation period, which would have rendered it impossible for him to file the appeal within the stipulated timeframe as mandated under Section 249(3) read with Section 249(2)(c) of the Act. Therefore, after careful consideration, I hereby reject the condonation of delay for filing the appeal. It is held that the instant appeal is barred by limitation, and consequently, the appeal is not admitted. In view of the above, the appeal is dismissed as unadmitted, and the appellant’s request for relief is denied. The order of the AO dated 04.12.2019, shall stand confirmed and the appellant’s grounds of appeal are rejected.
14. In the result, the appeal preferred by the appellant is hereby dismissed.” 4.1 It is noted from the order of the ld.CIT(A) that assessee had raised legal grounds that no Notice was served on assessee and no assessment order was served on assessee. Assessee had filed an affidavit before ld.CIT(A). However, ld.CIT(A) did not bother to look at the submission of the Assessee and dismissed appeal of the assessee on account of delay.
5. In this case, there was a valid and sufficient reason for delay in filing appeal before the ld.CIT(A) as assessment order was not served on assessee. The service of notice and service of assessment order goes to the root of the issue. We have already mentioned that ld.DR could not explain us how and when the assessment order was served. Service of Demand Notice u/s.156 along with assessment order is mandatory. Absence of service of Demand Notice u/s.156 can lead to quashing of assessment order. However, as mentioned above, ld.DR has not established service of assessment order and service of Demand Notice u/s.156 of the Act. Ld.CIT(A) being the Departmental Person could have accessed the assessment records and verified these facts. However, ld.CIT(A) has not bothered to do the same. Substantial justice is more important than procedural delays. There was sufficient cause for delay, hence, we direct ld.CIT(A) to condone the delay.
6. In these facts and circumstances of the case, the order of the ld.CIT(A) is set-aside to ld.CIT(A) for denovo adjudication. The ld.CIT(A) shall provide opportunity to the assessee. Assessee shall file necessary details before the ld.CIT(A). Accordingly, grounds of appeal raised by the assessee are allowed for statistical purpose.
In the result, appeal of the assessee is allowed for statistical purpose. Order pronounced in the open Court on 22 May, 2025.