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Facts
The assessee filed an appeal against a penalty order, claiming no delay. However, the CIT(A) held there was a 3-day delay and dismissed the appeal without a proper hearing. The assessee contended that the penalty order was received later, making the appeal within the limitation period.
Held
The tribunal held that the CIT(A) erred in dismissing the appeal solely on the ground of delay without providing an opportunity for explanation and hearing. The case was remanded to the CIT(A) for a fresh decision on merits after affording an opportunity of hearing.
Key Issues
Whether the CIT(A) was justified in dismissing the appeal for a minor delay without affording the assessee an opportunity to explain and be heard on merits.
Sections Cited
270A, 1961
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Income Tax Appellate Tribunal, “A” BENCH, AHMEDABAD
Before: S/SHRI T.R. SENTHIL KUMAR & NARENDRA PRASAD SINHA
PER T.R. SENTHIL KUMAR, JUDICIAL MEMBER
This appeal is filed by the assessee as against the appellate order dated 4.3.2025 passed by the Commissioner of Income-Tax(Appeal), National Faceless Appeal Centre (NFAC), Delhi [hereinafter referred to as “ld.CIT(A)] refusing to condone the delay of three days in filing the appeal relating to the assessment year 2018-19.
2. Short controversy in this appeal is, the assessee filed appeal before the ld.CIT(A) on 2.2.2022 as against the penalty order dated 1.1.2022 levied under section 270A of the Income Tax Act, 1961 (hereinafter referred to as “the Act”). The appeal was filed before the NFAC on 2.2.2022, which is well within the period of limitation of 30 days, as provided under the Act. Thus, while filing the Form No.35 the assessee claimed that there is no delay in filing the appeal. However, the ld.CIT(A) held that there was a delay of 3 days in filing the above appeal and no explanation offered by the assessee, thereby dismissed the appeal in limine.
Aggrieved against the appellate order, the assessee is in appeal before us raising the following Grounds of Appeal:
“1. The Hon'ble Commissioner of Income-tax (Appeals) has erred both in law and on facts in not admitting the appeal at the threshold, solely on the ground of delay in filing of appeal without adjudicating it on merits, thereby failing to consider the substantive issues raised by the appellant in respect of the penalty levied under section 270A of the Income Tax Act, 1961 ("the Act").
The Hon'ble CIT(A) failed to appreciate the fact that the order under Section 270A of the Act was passed on 01.01.2022 and was served upon the appellant on 03.01.2022. Owing to the two-day gap between the date of the order and its actual receipt, the appellant was under a bona fide belief that the appeal had been filed within the prescribed time period. Consequently, no separate application for condonation of delay was filed along with Form 35. The learned CIT(A) should have condoned the delay, admitted the appeal and should have decided the same on merits.
3. Without prejudice to the above, the appellant submits that the Hon'ble CIT(A) failed to appreciate the fact that the present case is well- founded on substantial legal and factual grounds. However, he proceeded to reject the appeal without considering the written submissions solely on account of the absence of a formal condonation application, thereby depriving the appellant of an opportunity to be heard on merits. In view of this, the appellant prays before your honour to kindly send the case back to the file of the Hon'ble CIT(A) for fresh consideration on its merits.
The ld.counsel for the assessee submitted that the assessee received penalty order on 3.1.2022, therefore the appeal filed on 2.2.2022 is well within the limitation period and no question of delay 3 in filing the appeal. However, the ld.CIT(A) calculated 30 days period from the date of penalty order viz. 1.1.2022 and held that three days delay in filing the appeal. Further, the ld.CIT(A) has not called for any explanation for the so-called delay in filing the appeal. Thus, he requested to set aside the appellate order by giving proper opportunity of hearing to the assessee.
Per contra, the ld.Sr.DR appearing for the Revenue supported by the order passed by the ld.CIT(A).
We have given our thoughtful consideration and perused the material available on record. As held by the ld.CIT(A) that there is a delay of three days in filing the appeal, he should have put a notice of hearing to the assessee to explain the delay in filing the appeal. Since, in Form No.35, the assessee clams service of penalty order as 3.1.2022, thereby there is no delay in filing appeal. Further, we notice that the case laws relied on by the ld.CIT(A) of Madras High Court in the case of Madhu Dadha Vs. ACIT reported in 317 ITR 458 (Mad) held that liberal approach is to be adopted while deciding the condonation of delay, and the land-mark judgment of the Hon’ble Supreme Court in the case of Collector, Land Acquisition Vs. Mst. Katiji, 167 ITR 471 (SC). Thus, in our considered view, the ld.CIT(A) is not correct in dismissing the appeal without affording an opportunity to explain the case, whether there is delay in filing the appeal or not. Whereas, he dismissed the appeal without offering opportunity of hearing to the assessee which is against principle of natural justice
Therefore, in the interest of justice, we deem it fit to set aside the matter back to the file of the ld.CIT(A) to give proper opportunity of hearing to the assessee to explain, if there is any delay in filing the
In the result, the appeal filed by the assessee is hereby allowed for statistical purpose.
Order pronounced in the Court on 10th July, 2025 at Ahmedabad.