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Facts
The assessee filed an appeal challenging the order of the CIT(A) for AY 2010-11, which was passed ex-parte. The assessee's appeal before the CIT(A) was dismissed as non-admitted due to a delay of 547 days in filing.
Held
The Tribunal condoned the delay of 547 days in filing the appeal, considering the facts and circumstances. The Tribunal directed the AO to give effect to his remand report dated 16.01.2020.
Key Issues
Whether the delay of 547 days in filing the appeal before the CIT(A) should be condoned, and whether the CIT(A) erred in passing an ex-parte order without considering the remand report.
Sections Cited
147, 144, 148, 142(1), 271(1)(c), 1962
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, JAIPUR BENCHES,”SMC” JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, vk;dj vihy la-@ITA No. 328/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 Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, vk;dj vihy la-@ITA No. 328/JP/2025 fu/kZkj.k o"kZ@Assessment Year : 2010-11 cuke Anju Sharma Income Tax Officer, Vs. 439, Jagdamba Nagar, Ward 5(5), Jaipur Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: BMPPS4803K vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. Saurav Harsh, Adv. jktLo dh vksj ls@ Revenue by : Sh. Gautam Singh Choudhary, JCIT lquokbZ dh rkjh[k@ Date of Hearing : 13/05/2025 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 04/06/2025 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM
By way of present appeal the assessee challenges the order of learned National Faceless Appeal Centre, Delhi [ for short CIT(A) ] dated 09/06/2023 for assessment year 2010-11 that order was passed in the matter of an assessment order passed on 17.03.2016 under section 147/144 of the Income Tax Act, 1961 [ for short Act] by the Income Tax Officer, Ward 5(5), Jaipur [ for short AO].
That On the facts and in the circumstances of the case and in law, ld. “1. CIT(A) grossly erred in passing the ex-parte order dated 09.06.2023.
2. That On the facts and in the circumstances of the case and in law, ld. CIT(A) grossly in not admitting the appeal on the ground of non-filing of application for condonation of delay.
3. That On the facts and in the circumstances of the case and in law the Ld. CIT(A) grossly erred in not verifying its own record that there is no delay in filing of appeal, assessee filed the appeal manually on 11.04.2016 which is within limitation period.
4. That On the facts and in circumstances of the case, the ld. CIT(A) grossly erred in not considering the remand report dated 16.01.2020 and 24.10.2019 wherein the ld. assessing officer allow the addition of Rs 12,78,608/- made on account of unexplained investment and admit that addition of Rs 1,31,000/- on account of profit on share was made inadvertently.
At the outset of hearing, the Bench observed that there is delay of 547 days in filing of the appeal by the assessee for which the ld. AR of the assessee filed an application for condonation of delay with following prayers:
The humble assessee appellant most respectfully submits as under:-
1. 1. That assessee filed the appeal against the order passed by the ld. CIT(A) dated 09.06.2023 before the Hon’ble Bench on 03.03.2025 with the delay of 547 days.
2. That impugned order dated 09.06.2023 passed by the ld. CIT(A) was not received on the Email provided on the income tax portal of the assessee i.e rankareturns@gmail.com.
3. That assessee appellant physically filed the appeal before the ld. CIT(A) on 11.04.2016 against the order dated 17.03.2016 passed by the ld. assessing officer u/s 147r.w.s144 of the Act.
Anju Sharma vs. ITO 4. That thereafter department made the mandatory requirement to file the appeal before the ld. CIT(A) through online mode and assessee again filed the appeal through online mode on 14.06.2016.
5. That assessee during the appeal proceeding before the Jurisdictional CIT(A) filed the detail reply in response to the all the notice issued by the ld. CIT(A).
6. That thereafter the Central Government introduced the National Faceless Appeal Centre wherein all the pending appeal transfer to the National Faceless Appeals Centre.
7. That ld. CIT(A) NFAC, treating the appeal defective and delay due to the appeal filed through online mode on 14.06.2016 and issued notices on the email provided on the Income-tax efiling portal i.e rankareturns@gmail.com seeking explanation in delay in filing of appeal before the ld. CIT(A).
The notices which were issued was not came into the knowledge of the assessee as the same was issued on the email i.e rankareturns@gmail.com.
9. That thereafter, due to non-compliance of the notices issued by the ld. CIT(A), an ex-parte order passed against the assessee appellant treating the appeal non- admitted which was not received on the email provided on the portal i.e rankareturns@gmail.com.
10. That assessee received the Show-cause notice dated 10.02.2025 u/s 271(1)(c) of the Act through post on 11.02.2025 and only then the assessee came to know regarding the passing of ex-parte order dated 09.06.2023.
11. That assessee after coming to the knowledge regarding passing of exparte order dated 09.06.2023, with the help of his counsel, without any further delay, filed the appeal before the Hon’ble Tribunal. That the delay of 547 days is unintentional and under bonafide mistake & the appellant was prevented from sufficient cause and with this background, we request your honour to take stock of the situation in totality, take a lenient and human approach towards the humble assessee. It is therefore most respectfully prayed that the delay of 547 days in filing the appeal be condoned so that justice be done.
4. Ld. AR of the assessee submitted that in this case the assessee has filed all the submission and even the remand report was called for and in the meanwhile the appeal of the assessee assessee also submitted vide this condonation petition that notices issued was not came into the knowledge of the assessee and the order was on the email provided on the portal and that is why there is non compliance and delay in filling the present appeal.
On the other hand, ld. DR submitted that the reasons advanced by the assessee are sufficient to condone the huge delay. But at the same time ld. DR did not dispute the facts cited in the application made by the assessee for condonation of delay.
6. We have heard the parties and perused the materials available on record. The bench noted that assessee contended on an affidavit that the order of the ld. CIT(A) was not received on the email id provided on the portal. The assessee filed the appeal in physical mode, made various submission and additional evidence petition which was considered by the ld. CIT(A) and even the remand report was sought and which was in favour and therefore, in the interest of substantial justice we condone the delay in filling the present appeal.
Now coming to the merits of the dispute the brief facts of the case are that in this case notice u/s 148 of Act was issued on 05-08- Range-5, Jaipur. Notice u/s 148 was duly served on 06-08-2014 by the notice server. As the assessee did not comply with the notice u/s 148 in the prescribed time, notice u/s 142(1) was issued along-with questionnaire on 11-05-2015 fixing date of hearing on 26-05-2015 but not complied with.
Thereafter notice were issued on 29-05-2015, 28-07-2015 and 23.02.2016 fixing dates of hearing on 08-06-2015, 14-08-2015 and 29.02.2016 respectively. Assessee submitted incomplete details in response to these notices. Hence show-cause notice issued to assessee on 02-03-2016 along-with notice u/s 142(1) fixing date of hearing on 07-03-2016 and served through speed post wherein it was clearly mentioned that in case of non-compliance order will be passed u/s 144 of I.T. Act, 1961 based on information available. Ld. AO based on the documents available on record found that assessee has not provided any explanation regarding source of investment in shares amounting to Rs. 12,78,602/- and as per statement of Broker profit from share trading in Rs. 1,31,000/- for the period from 30.03.2009 to 29.03.2010. As it was clearly mentioned in the notice issued that in case of non-compliance assessment will be completed on the basis of available information u/s 144 of the Act. As assessee did not comply with the show cause, it is treated that he has no-objection against the proposed the assessment u/s 144 of IT Act, 1961 on the best judgment and available facts. Hence the addition of Rs. 14,09,602/- was made in the income of assessee and thereby the assessment was completed on 17.03.2016.
8. Aggrieved from the order of Assessing Officer, assessee preferred an appeal before the ld. CIT(A). Apropos to the grounds so raised the relevant finding of the ld. CIT(A) is reiterated here in below:
4. During the course of appellate proceedings vide notice dated 09.01.2021, 22.10.2022, 01.11.2022, 02.12.2022, and show cause dated 11.01.2023 was issued the appellant seeking explanation as follows:
"Please show cause why your appeal shall not be admitted as you have not filed the appeal within the stipulated time."
The appellant during the appellate proceedings neither complied with the notices nor submitted the reply to the show cause notice.
5. In view of the above defects and further since the appellant has not taken any steps to rectify the differences including filing of petitions of condonation of delay. It is held that the appellant had not filed a valid appeal in accordance with the provisions of the I.T Act, 1961. Accordingly the Form 35 filed since not in consonance with the provisions of the IT. Act, 1961, it cannot be acted upon. Hence, the appeal is deemed to have, not been filed and so not admitted.
In the result, the appeal is not admitted.”
As the assessee did not find any favour, from the appeal filed before the ld. CIT(A), the assessee has preferred the present appeal before this Tribunal on the ground as reproduced hereinabove. To support the various grounds raised by the asseseee, ld. AR of the assessee, has filed the written submissions which reads as follows:
That assessee appellant an individual and earned income from tailoring work from home. That during the year under consideration assessee appellant did not earned income below taxable limit. That assessee appellant during the year under consideration invested her past saving in the stock marked and engaged in the share trading on margin basis.
GROUND NO. 1 TO 3: PASSING THE EX-PARTE ORDER BY THE LD. CIT(A) TREATING THE APPEAL BEYOND LIMITATION. i) That assessee appellant preferred the the appeal before the ld. Jurisdictional CIT(A) on 11.04.2016 against the order dated 17.03.2016 passed by the ld. assessing officer u/s 147r.w.s144 of the Act. That assessee on 11.04.2016 manually filed the appeal in Form 35 as during such period there was no mandatory requirement for filing the appeal through online mode on the portal. Copy of Form 35 manually filed on 11.04.2016 is enclosed herewith. (P.B. 6 to 8) ii) Thereafter, the Hon’ble CBDT made amendment in filing of appeal in Form 35 and made mandatory requirement for e-filing of the appeal and again assessee appellant filed the appeal through online mode on the Income-tax Portal on 14.06.2016. iii) That ld. CIT(A), NFAC, without verifying its record available with him, treated the appeal beyond the limitation period and defective and dismissed as non-admitted. That Ld. CIT(A) should go through the file which he received from the Jurisdiction CIT(A) but the ld. CIT(A) does not wish to do the same and arbitrary and illegally passed the ex- parte order.
GROUND NO. 4 LD. ASSESSING OFFICER DELETED THE ADDITION IN REMAND PROCEEDING.
i. That assessee appellant an individual and earned income from tailoring work from home. That during the year under consideration assessee appellant did not earned income below taxable limit. That assessee appellant during the year under consideration invested her past saving in the stock marked and engaged in the share trading on margin basis. ii. That re-assessment proceedings u/s 148 of the Act was initiated against the assessee appellant on the reason that assessee made investment in the share amounting Rs 12,78,602/- and also earned the profit of Rs 1,31,000/- from share trading. iii. That assessee appellant during the appeal proceeding could not submit any response of the notices issued by the assessee appellant and did not submit any documents as desired by the ld. assessing officer. The ld. assessing officer passed the ex-parte order u/s 147r.w.s144 of the Act and made addition of Rs 12,78,608/- on account of unexplained investment and made addition of Rs 1,31,000/- on account of profit from share trading. iv. That assessee appellant preferred an appeal before the ld. Jurisdictional CIT(A) and during the appeal proceeding, assessee appellant filed the Application under rule 46A of the Income-tax Rule 1962 on 12.09.2019. Copy enclosed. (P.B. 9 to 11) v. That assessee appellant along with the application under rule 46A submits the following documents:- � Balance-sheet, Profit and Loss A/c. (P.B. 12 to 13) � Stock Summary of Assessee appellant. (P.B. 14) � Bank Statement. (P.B. 15 to 18) � Copy of Statement of Transaction from Shreepati Holdings and Finance Pvt Ltd. (P.B. 19 to 26). vi. That assessee appellant also submits before the ld. ld. Jurisdictional CIT(A), that assessee was engaged in the share trading on margin basis and only invested Rs 45,000/- during the year under consideration and paid the broker through cheque. That assessee further submits that the assessee had only Rs 7121/- in closing stock and also earned loss of Rs 13,649. vii. That ld. Jurisdictional CIT(A), after receiving the application under rule 46A seeks remand report from the ld. Assessing officer vide letter dated 16.09.2019 and the ld. Assessing officer, after receiving the documents and after complete verification of the documents, admit that the assessee earned loss of Rs 36,200/- vide remand report dated 24.10.2019. Copy enclosed. (P.B. 27 to 28) viii. That during the remand proceeding the ld. assessing officer desires the global report and Form 10DB from the assessee and assessee appellant again filed the Application under rule 46A of the Income-tax Rule 1962 before the ld. ld. Jurisdictional CIT(A) on 11.11.2019 along with the documents desired by the ld. assessing officer i.e. the Form 10DB and Global report after received from her broker. Copy enclosed. (P.B. 29 to 44) ix. That ld. Jurisdictional CIT(A), on receiving the Application under rule 46A of the Income-tax Rule 1962 dated 11.11.2019 again referred the documents to the ld. assessing officer and seeks remand report from the assessee appellant vide letter dated 24.12.2019. x. That ld. assessing officer, after considering the documents as desired during the remand proceeding, deleted the addition made on account of unexplained xi. That thereafter the Government introduced the National Faceless Appeal Centre and all the pending appeals migrated to the National Faceless Appeals Centre. That ld. CIT(A) NFAC, ignore the entire facts and remand report of the ld. Assessing officer and merely relied upon the date of Form 35 which was filed in view of mandatory requirement of E-filing of the Appeal. The assessee humbly submits that the appeal of the assessee appellant may kindly be allowed in view of the remand report dated 24.10.2019 and 16.01.2020.
10. To support the contention so raised in the written submission reliance was placed on the following evidence / records :
S.No. Particular Page No. From To 1. Written Submission. 01 05 2. Copy of Form 35 manually filed on 11.04.2016. 06 8 3. Copy of Application under rule 46A of the Income-tax 09 11 Rule 1962 dated 12.09.2019.
Copy of Balance-sheet, Profit and Loss A/c. 12 13 5. Copy of Stock Summary of Assessee appellant. 14 14 6. Copy of Bank Statement. 15 18 7. Copy of Statement of Transaction. 19 26 8. Copy of Remand report dated 24.10.2019. 27 28 9. Copy of Application under rule 46A of the Income-tax 29 44 Rule 1962 dated 11.11.2019 along with the Form 10DB and Global report.
Copy of Remand report dated 16.01.2020. 45 45
The ld. AR of the assessee in addition to the above written submission so filed vehemently argued that the assessee has filed the appeal in physical mode and also filed an application under rule 46A of the Income Tax Rules for additional evidence before ld. CIT(A)-2, Jaipur, copy of the same was also placed on record at paper book page no. 9 to 11.
When the appeal was in physical mode the then ld. CIT(A) having admitted AO. Ld. AO has also forwarded a remand report dated 16.01.2020. A copy of the remand report was also placed on record vide paper book page no.
Considering that aspect of the matter, it was of the view that the appeal will be decided based on the remand report. Thus, though the assessee remanded non-compliant before ld. AO but has duly complied the proceeding till the remand report placed on record and based on that final appeal order was pending. In the meanwhile the appeal of the assessee migrated to the National Faceless Appeal Centre and there the non- compliance was made which was based on the reason as advanced in the prayer for condonation delay. Based on that remand report the appeal of the assessee be decided by the tribunal in the interest of substantial justice to the assessee.
Per contra, ld. DR relied on the order of ld. CIT(A) but at the same time did not dispute the remand report available on record and since that remand report has not been considered by ld. CIT(A), NFAC. The matter may be remanded to the AO to give effect of the facts on record.
We have heard the rival contentions and perused the material placed on record. The bench noted that in this case, the assessee has also filed an which was admitted by the ld. CIT(A) in physical mode and forwarded, the same to ld. AO for remand report to the AO vide his report dated 16.01.2020 also placed on record. The remand report so submitted by the ld. AO on two occasions i.e., on 24.10.2019 and 16.01.2020 both the remand report. We have gone through the content of the remand report wherein the ld. AO accepted that fact that as against the addition of Rs. 12,78,608/- addition of Rs. 48,103/- can be made and against that income assessee has already offered the income of Rs. 16,380/- and balance was required to be made. The parties have not disputed that finding of the ld. AO on merits.
As regards another addition of Rs. 1,31,000/- made ld. AO admitted that the same was added inadvertently.
Considering this factual aspect of the matter and as the ld. CIT(A) has finally not dealt with this remand report which was not disputed by the ld.
DR before us we deem it fit to direct the ld. AO to give effect to his remand report already placed on record and the charge the income which is already reported in his report dated 16.01.2020.
In terms of the above observation the appeal of the assessee is partly allowed.
Anju Sharma vs. ITO Order pronounced in the open court on 04/06/2025. Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 04/06/2025 *Ganesh Kumar, Sr. PS आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Anju Sharma, Jaipur 2. izR;FkhZ@ The Respondent- ITO, Ward 5(5), Jaipur 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 328/JP/2025) 6. vkns'kkuqlkj@ By order,
सहायक पंजीकार@Aेेज. त्महपेजतंत