Loading judgment…
Facts
The assessee filed an appeal against an ex-parte order by the CIT(A) confirming additions made by the AO. The appeal was filed with a significant delay of 645 days, for which the assessee sought condonation citing reasons like being a senior citizen, widow, and health issues, and difficulties with her counsel.
Held
The Tribunal condoned the delay in filing the appeal, acknowledging the assessee's circumstances. However, the Tribunal noted that both the AO and CIT(A) had passed ex-parte orders without providing proper opportunity to the assessee. Therefore, the matter was restored to the file of the AO for fresh adjudication.
Key Issues
Whether the delay in filing the appeal should be condoned and whether the ex-parte orders passed by the lower authorities should be set aside and the matter remanded for fresh adjudication.
Sections Cited
143(3), 144, 271(1)(c)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, JAIPUR BENCHES,”SMC JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI GAGAN GOYAL, AM vk;dj vihy la-@ITA No. 896/JP/2025
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC JAIPUR Mk0 ,l- lhrky{eh] U;kf;d lnL; ,oa a Jh xxu Xkks;y ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI GAGAN GOYAL, AM vk;dj vihy la-@ITA No. 896/JP/2025 fu/kZkj.k o"kZ@Assessment Year : 2014-15 cuke Smt. Pushpa Upadhyay The ITO Vs. F-4/36, SangamVihar Ward 1(4) Jaipur Vidhyadhar Nagar, Jaipur – 302 039 LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAZPU 3841 J vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksjls@Assesseeby : Shri S.R. Sharma,CA Shri R.K. Bhatra, CA jktLo dh vksjls@Revenue by: Shri Gautam Singh Choudhary, JCIT-DR lquokbZ dh rkjh[k@Date of Hearing : 13/08/2025 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 08/09/2025 vkns'k@ORDER PER: DR. S. SEETHALAKSHMI, J.M.
This appeal filed by the assessee is directed against the order of ld. CIT(A) dated 07-06-2023, National Faceless Appeal Centre, Delhi [ hereinafter referred to as (NFAC) ] for the assessment year 2014-15 wherein the assessee has raised the following grounds of appeal.
1. That on the facts and in the circumstances of the case the impugned order passed by the Id. CIT(A) on ex-parte basis is wrong SMT. PUSHPA UPADHYAY VS ITO, WARD 1(4), JAIPUR and bad in law in as much as the appellant was not aware and was also prevented by reasonable cause about fixation of appeal.
2. That without prejudice to the ground No. (1) above on the facts and in the circumstances of the case the Id. CIT(A) is wrong and has erred in law in passing impugned appellate order in as much as the order has been passed without calling any report from the Id. AO in respect of additions made in assessment and explanations/submissions made by the appellant before him and therefore, deserves to be set aside and passed de novo.
3. That without prejudice to the ground No. (1) & (2) above on the facts and in the circumstances of the case the Id. CIT(A) is wrong, unjust and has erred in law in confirming following additions made by the Id. AO to the income of the appellant :- (a) On account of investment in MF Rs. 2,00,000 (b) On account of alleged unverified time deposits Rs. 5,52,000 (c) On account of alleged undeclared interest income Rs. 11,40,528 Total Rs.18,92,528 2.1 At the outset of hearing of the appeal, the Bench noticed that there is delay of 645 days in filing the appeal before ITAT for which the assessee has filed an application dated 17-06-2025 for condonation of delay giving therein following reasons.
‘’With reference to above, it is submitted that the due date of filing the appeal before your Honors was 06.08.2023 and the delay of 670 days occurred for the reasons submitted herein below:- 1. That I am super senior citizen and widow of Late Lt. Col. Shri J.N. Upadhyay. I am suffering from multiple deceases and confined to bed since the last more than 2 years.
SMT. PUSHPA UPADHYAY VS ITO, WARD 1(4), JAIPUR 2. That I have 2 sons Colonel Anil Updhyay and Brigadier Anuj Upadhyay My younger son Brig. Anuj Updhyay looks after my all tax and financial affairs and he is posted in Srikona (Silchar) Cachar District, Assam since the year 2023. He is posted on a very sensitive post and can leave the Headquarter only in exceptional circumstances. During the period December 2024 to till date, he availed leave for 13 days from 8 February, 2025 to 20 February, 2025 which was also on account of official temporary duty in Delhi. Copy of railway ticket and certificate issued by the Headquarters Inspector General, Assam Rifles (East) on 30 April, 2025 is enclosed herewith for verification of the said facts.
That my counsel had made an e-mail ID of mine for filing of Income tax returns and same was operated by him only. I do not know the operating procedure i.e. open and reply to the mailing system. I am and my son both were dependent on my counsel for Income tax matters. All notices and orders, etc. were received in the email were checked and responded to by my said counsel only. 4 (i) My said counsel did not inform either me or my son regarding any notice of fixation of appeal before the NFAC, Delhi. It is also pertinent to mention here that I personally do not know the said counsel, who was engaged by my son with reference in his friend. A notice u/s 271(1)(c) of the IT Act, 1961 dated 17.12.2024 was sent to me by my said counsel. As I am totally unaware about the income tax matters and as such, I informed to my son immediately regarding the said notice. But, due to his engagement in some very confidential matters, he could not pay much attention to the said notice and in the month of April, 2025 when he felt comfortable, contacted to my counsel. At that time, I came to know about the ex-parte appeal order due to none compliance the appeal hearing notice. Further, my said counsel also informed me that he is not having any information about fixation notices of hearing the appeal, My son after having unpleasant discussion with the said counsel, on advice of our close relation, appointed new counsel to do the needful at the earliest in the matter. My present SMT. PUSHPA UPADHYAY VS ITO, WARD 1(4), JAIPUR counsel after collecting necessary documents for filing the appeal before the Hon'ble ITAT, Jaipur Bench, Jaipur, prepared and filed this appeal. 4(ii) Further, it is humbly submitted that being a settled legal principle that ordinarily a litigant does not stand to gain by either preferring an appeal belatedly or not appearing before the appellant forum. However, there may be cases where for certain malafide reasons, the appellant will avoid proceedings, but in the case of the assessee, there is no such record that the appellant had deliberately lodged appeal belatedly before the Hon'ble Bench. Further, it is also evident and verifiable from the Appellate Order that there is no such record that the assessee deliberately do not appear before the CIT(A) for certain other collateral purposes. Apart from that the matter involves a huge tax liability on a deceased Military official widow and the appellant remedy being to set aside the matter to the Id. CIT(A) and the Commissioner's powers are coterminous with that power of Assessing Officer In view of the above facts and circumstances, appellant was prevented by sufficient cause in filing the appeal within the statutory time limit and in the interest of justice, I humbly pray for condonation of days delay in filing the appeal. It is therefore, again humbly prayed to your Honors that the delay in filing the appeal may kindly be condoned and appeal may very kindly be ordered to be admitted.’’ To this effect, the assessee has filed an affidavit deposing the above facts of the case.
2.2 On the other hand, the ld. DR objected to such an inordinate delay in filing the appeal before ITAT. However, the ld. DR submitted that the Court may decide the issue as deemed fit and proper in the case.
SMT. PUSHPA UPADHYAY VS ITO, WARD 1(4), JAIPUR 2.3 We have heard both the parties and perused the materials available on record and from the submissions of the assessee, the Bench feels that the assessee is a super senior citizen and widow of an Army Officer and she has to depend upon her sons in connection with income tax matters who are Senior army officers, posted at Silachar, Distt. Assam. This shows that the assessee is prevented by sufficient cause for not filling the appeal in time and therefore, we condone the delay by considering the affidavit of the assessee . Hence, the delay so made by the assessee in filing the appeal before us is condoned. 3.1 Apropos to the grounds of appeal of the assessee (supra), the Bench noticed that the ld. CIT(A) has passed an ex-parte order by dismissing the appeal and thus confirmed the addition made by the AO. The narration so made by the ld. CIT(A) in his order is reproduced as under:- ‘’5. Decision: I have carefully considered the assessment order and the grounds of appeal raised by the appellant. Brief facts of the case are that, the appellant filed her return of income for AY 2014-15 on 12.08.2015 declaring total income of Rs.2,85,890/- Thereafter the appellant's case was selected for Limited Scrutiny thorough CASS. The Assessing Officer (AO) completed the assessment proceedings vide order u/s 143(3) with following additions:
1. Addition of Rs.5,52,000/- on account of unverified time deposits
2. Addition of Rs. 11,94,4376 on account of undeclared interest income.
SMT. PUSHPA UPADHYAY VS ITO, WARD 1(4), JAIPUR 3. Addition of Rs.2,00,000/- on account of investment in Mutual Funds from undisclosed sources. Aggrieved from the above, the appellant filed the present appeal. 5.1 Ground No. 1: This ground is related to all the above additions mentioned by the AO. In this regard it is seen that as per the information received from the State Bank of Bikaner and Jaipur, by the AO, the appellant had made Time Deposits amounting to Rs.45,52,000/- Also, the appellant-had made investment of Rs.2,00,000/- in Mutual Funds during the year. During the assessment proceedings, the appellant submitted that she had sold an immovable property for sales consideration of Rs.40,00,000/- in F.Y. 2012-13 and the above investments in Time Deposits and Mutual Funds are out of the amount received as sales consideration. However, the AO noted that the amount of sales consideration received by the appellant was Rs.40,00,000/- and the amount of Time deposit was Rs. 45,52,000/-. Thus, the source of the difference amount of Rs. 5,52,000/- remains unexplained. Also, the source of Rs.2,00,000/- investment in Mutual Funds remains unexplained. In view of the above, the AO added the above mentioned amounts to the total income of the appellant. 5.1.1 During the appellate proceedings, the appellant vide statement of facts claimed that the said investments were out of the sales proceeds and her pension income and also from the money received from her sons. However, the appellant failed to provide any documentary evidence in support of her claim even after being provided with multiple opportunities. Hence, the additions of Rs.5,52,000/- and Rs.2,00,000/-made by the AO are upheld. 5.1.2 The AO further noted that during the year under consideration, the appellant eamed interest income of Rs.11,94,437/- from various banks accounts maintained by her. However, the appellant had shown interest income of only Rs.53,909/- in her return of income. Hence, the AO proposed in SMT. PUSHPA UPADHYAY VS ITO, WARD 1(4), JAIPUR the assessment order that difference amount of Rs. 11,40,528/- should be added to the total income of the appellant. However, in the subsequent para, the AO added the total amount of Rs.11,94,437/- in the total income of the appellant. Hence, the AO is directed to limit the addition on account of interest income to Rs.11,40,528/- and modify the calculation accordingly. 5.1.3 In view of the above, the ground no. 1 raised by the appellant is partly allowed. 5.2 Ground No. 2: This ground is general in nature and does not need separate adjudication. Hence, this ground is dismissed.
In result, the appeal is dismissed.’’ 3.2 During the course of hearing, the ld. AR of the assessee submitted that the ld. CIT(A) is not justified in dismissing the appeal and he passed an ex-parte order without providing opportunity of hearing to the assesse. The ld. AR of the assessee further submitted that his case may kindly be restored to the file of AO for afresh adjudication and the assessee will submit all the documents before the AO to settle dispute in question. 3.3 We have heard both the parties and perused the materials available on record. It is not required to repeat the facts of the case as the ld. CIT(A) has narrated the entire facts of the case (supra) and dismissed the appeal of the assessee by holding that the assessee did not pursue the case before him and also not advanced the documents, explanation/ evidence to support the grounds of appeal SMT. PUSHPA UPADHYAY VS ITO, WARD 1(4), JAIPUR raised before him. It is also noticed from the assessment order that the AO had passed an ex-parte order u/s 144 of the Act and made the following additions.
(a) On account of investment in MF Rs. 2,00,000 (b) On account of alleged unverified time deposits Rs. 5,52,000 (c) On account of alleged undeclared interest income Rs. 11,40,528 It is an admitted fact that the assessee is ex-parte before the AO and also before the ld. CIT(A). Therefore, she could not put forth her defence. It was the bounded duty of the assessee to appear before the statutory authorities as and when called for. It is noticed that various opportunities were provided to the assessee for settling the issue but the assessee remained lethargic and unserious in pursuing her case. However, we are of the view that lis between the parties has to be decided on merits so that nobody’s rights could be scuttled down without providing opportunity of being heard to the assessee. Hence, the matter is restored to the file of the AO to decide it afresh by providing one more opportunity of hearing, however, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of proceedings. Thus the appeal of the assessee is allowed for statistical purposes. 3.4 Before parting, we may make it clear that our decision to restore the matter back to the file of the AO shall in no way be construed as having any reflection or SMT. PUSHPA UPADHYAY VS ITO, WARD 1(4), JAIPUR expression on the merits of the dispute, which shall be adjudicated by AO independently in accordance with law. 4.0 In the result, the appeal of the assesee is allowed for statistical purposes Order pronounced in the open court on 08 /09/2025.