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Facts
The assessee filed two appeals against orders of the CIT(A) that dismissed their appeals as not maintainable due to delays in filing. The original assessment orders were passed under Section 143(3) and Section 147 read with Section 144B of the Act for AY 2018-19.
Held
The Tribunal held that the CIT(A) erred in dismissing the appeals without providing the assessee with an opportunity to explain the delay with sufficient cause. The Tribunal found that the CIT(A) should have allowed for a fresh decision on the condonation of delay after giving the appellant a reasonable opportunity to be heard.
Key Issues
Whether the CIT(A) erred by dismissing the appeals without providing the appellant an opportunity to explain the delay in filing, and whether an application for condonation of delay is mandatory.
Sections Cited
143(3), 147, 144B, 249, 250, 80P
AI-generated summary — verify with the full judgment below
PER: GAGAN GOYAL, ACCOUNTANT MEMBER Above captioned two appeals came to be presented before the Registry on 30-06-2025. By way of first mentioned appeal, assessee has challenged order dated 18-03-2025 passed by ld. CIT(A), NFAC, Delhi, relating to the assessment year 2018-19, whereby appeal filed by assessee challenging the assessment order dated 31-03-2021 passed under section 143(3) of the Act, has been dismissed, as not 2 ITANO. 990 & 991/JPR/2025 JAIPUR SAHAKARI KRAYA VIKARAYA SAMITI VS ITO WARD 5(2), JAIPUR maintainable, and consequently the only addition on account of disallowance of deduction claimed u/s 80P has been upheld.
By way of second appeal, assessee has challenged order dated 18-03-2025 passed by ld. CIT(A), NFAC, Delhi , relating to assessment year 2018-19, whereby the appeal filed by the assessee has been dismissed for the same reason i.e. not maintainable, and thereby assessment order dated 28-03-2023 passed u/s 147 and 144B of the Act, has been upheld, by affirming addition to the tune of Rs.41,08,159/- 3. Alongwith both the above captioned appeals, an application seeking condonation of delay has been filed.
Record reveals that the Registry made a deficiency note that each appeal was barred by limitation, having been filed 30 days after prescribed period of limitation.
On the applications seeking condonation of delay, (which according to the assessee is of 43 days), ld. AR for the applicant society has submitted that employee of the applicant society Shri Tej Singh remained on leave from 15-03- 2025 to 25-06-2025 due to death of his father in native village Gega (Distt. Sikar) and further that when the said employee joined his duty on 26-06-2025, print out of both impugned orders was taken, and further steps were taken.
3 ITANO. 990 & 991/JPR/2025 JAIPUR SAHAKARI KRAYA VIKARAYA SAMITI VS ITO WARD 5(2), JAIPUR 6. Ld. AR has submitted that only above named employee was having knowledge of computer functioning and operating E-Mail account, and further that in the given situation, the delay in filing of the two appeals be condoned.
Ld. DR for the Department has not opposed the prayer made on behalf of the applicant Samiti for condonation of delay in filing of the two appeals before this Appellate Tribunal.
In view of the above averments put forth in the application, the assessee applicant should have placed on record proof regarding employment of Shri Tej Singh; that he was the only employee of the assessee society having knowledge of computer functioning/ application; that he proceeded on leave from 15-03-2025 to 25-06-2025, and further that only when he joined, the assessee came to know of passing of impugned orders, print out having been taken. But, no such document has been placed on record. Furthermore, no affidavit of said employee Shri Tej Singh has been filed to support the application.
As noticed above, ld. DR for the Department has no objection to the condonation of delay in filing of these appeals before this Appellate Tribunal, and keeping in view short delay of 30 days in filing the appeals by the applicant, which is a Cooperative Society, we deem it a fit case to admit both the appeals. It is ordered accordingly.
4 ITANO. 990 & 991/JPR/2025 JAIPUR SAHAKARI KRAYA VIKARAYA SAMITI VS ITO WARD 5(2), JAIPUR On Merits 10. On merits, ld. AR for the appellant has submitted that ld. CIT(A) dismissed the appeals filed by the assessee by not condoning the delay in filing thereof while observing that there was inordinate delay in filing the same and that even no application was filed by the applicant seeking condonation of delay. The contention raised by ld. AR for the applicant is that in Form 35 uploaded in respect of each appeal, it was specified in Column No. 14 and 15 that there was delay in filing of the appeals before ld. CIT(A) for the reasons recorded therein and accordingly, prayer was made for the condonation of said delay.
It may be mentioned here that appeal relating to assessment order passed u/s 143(3) of the Act came to be filed before ld. CIT(A), late by 963 days, whereas the other appeal challenging the assessment order passed u/s 147 r.w.s. 144B of the Act came to be uploaded 237 days after the prescribed period of limitation of 30 days.
Ld. CIT(A) took into consideration that what to say proving of sufficient cause for condoning of delay, assessee had not submitted any application seeking condonation of delay of the said delay, in filing of each appeal.
5 ITANO. 990 & 991/JPR/2025 JAIPUR SAHAKARI KRAYA VIKARAYA SAMITI VS ITO WARD 5(2), JAIPUR As regards non-filing of application to seek condonation of delay, ld. AR for the applicant has submitted that there is no requirement of filing of any application seeking condonation of delay in filing of the appeals before ld. CIT(A). Ld. AR has further submitted that in Para 15 of Form 35, in respect of each appeal, reason for delay of filing of the appeal was furnished.
For filing of an appeal, sub-section (2) of Section 249 of I.T. Act provides a period of 30 days from the date on which intimation of order sought to be appealed against is served.
Sub-Section (3) of Section 249 provides that such an appeal may be admitted after expiration of prescribed period if the Commissioner (Appeals) is satisfied that appellant had sufficient cause in not presenting the same within the prescribed period of limitation.
As per Column No.14 of Form 35 appellant is required to furnish information regarding delay if any, in filing of appeal, and in case of any delay, appellant is required to give grounds for condonation of delay in Column No.15 thereof. No provision for filing of application seeking condonation of delay as regards appeal before CIT(A) has been brought to our notice. Even otherwise, abovesaid provision does not contain any such requirement.
6 ITANO. 990 & 991/JPR/2025 JAIPUR SAHAKARI KRAYA VIKARAYA SAMITI VS ITO WARD 5(2), JAIPUR In this situation, ld. CIT(A) fell in error while observing in para 4.5 of the impugned order that appellant should have filed an application seeking condonation of delay in filing of the appeals i.e. at the time of filing of Form No.35.
As regards proof of sufficient cause, if any, in filing of delay, before dismissing the appeal observing that same was not maintainable, ld. CIT(A) should have provided an opportunity to the appellant to bring on record material to establish any sufficient cause as claimed in Column No. 15 of Form 35. From the impugned order it transpires that three notices were issued by the office of the ld. CIT(A) to the assessee u/s 250 of the Act, but assessee did not file any submission. However, from the impugned order, it does not transpire that the assessee was specifically called upon to furnish documentary evidence so as to explain delay in filing of the appeals, before the same were dismissed even without being admitted. In the given situation, we deem it a fit case to remand the matter to ld. CIT(A) for afresh decision on the point of condonation of delay in filing of each appeal, after providing reasonable opportunity of being heard to the appellant.