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Facts
The assessee challenged an order of the CIT(A) which dismissed their appeal as barred by limitation. The assessee contended that the delay occurred because the CIT(A)'s order was not physically served and the email communication was to an old, disengaged counsel's address.
Held
The Tribunal condoned the delay in filing the appeal, finding it a fit case for condonation due to the circumstances of communication with the former counsel. The matter was then remanded to the Assessing Officer for a fresh decision.
Key Issues
Whether the delay in filing the appeal before the CIT(A) and subsequently before the Tribunal should be condoned, and if so, whether the matter should be remanded for fresh adjudication on merits.
Sections Cited
250, 44AD, 271F, 147, 148, 142(1), 69A
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Income Tax Appellate Tribunal, JAIPUR BENCHES,”SMC” JAIPUR
Before: SHRI RATHOD KAMLESH JAYANTBHAI, AM & SHRI NARINDER KUMAR, JM vk;dj vihy la-@ITA No. 1442/JPR/2024
fu/kZkj.k o"kZ@Assessment Year : 2017-18 Sh. Rajkumar Asnani Cuke The ITO, Vs. G-6, Jayanti Market, M.I. Road, Ward-1(2), Jaipur. Jaipur. LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: ABHPA3918M vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@Assessee by : Sh. Shrawan Kumar Gupta, Adv. jktLo dh vksj ls@Revenue by: Sh. Gautam Singh Choudhary, Addl.CIT lquokbZ dh rkjh[k@Date of Hearing : 15/01/2025 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 15/01/2025 vkns'k@ORDER PER: Narinder Kumar, Judicial Member By way of present appeal, the assessee has challenged order dated 28.01.2024, passed by Learned CIT(A), u/s 250 of the Income Tax Act, 1961 (in short “the Act”). The matter relates to assessment year 2017-18. Vide impugned order, Learned CIT(A) dismissed the appeal filed by the assessee, while holding that the same was barred by limitation, and the Sh. Rajkumar Asnani vs. ITO appellant had failed to proof any sufficient cause for condonation of delay, in filing the same.
Appeal before Learned CIT(A) was filed, while challenging assessment order dated 27.03.2022, passed by the Assessing Officer whereby total income of the assessee was assessed at Rs. 8,76,640/-, by making an addition of the same amount, while attracting the provisions of section 44AD of the Act. It may be mentioned here that present appeal before this Appellate Tribunal has been filed 243 days, after the prescribed period. In order to seek condonation of said delay, the applicant has filed an application. In support of the application, assessee has filed his affidavit. Arguments heard. File perused.
So far as the delay in filing of the appeal before this Appellate Tribunal is concerned, Ld. AR for the applicant has submitted that the order of Learned CIT(A) was not served upon the assessee physically. As regards, service of the said order by e-mail, Ld. AR for the applicant has submitted that the same might have been served on the e- mail of the authorized representative- earlier counsel engaged by the appellant. Further, it has been submitted that the assessee had disengaged the earlier counsel in the year 2022, and as such, on the portal, updated Sh. Rajkumar Asnani vs. ITO information meant for email ID by providing fresh email ID rajasnani0304@gmail.com . In this regard, our attention has been drawn to Form no. 35 submitted before Learned CIT(A). Ultimately, Ld. AR has urged that it was only on 25/26.11.2024, that the assessee received information on his mobile phone regarding passing penalty order u/s 271F of the Act, and it was thereupon that the newly engaged counsel appraised him of the dismissal of the appeal filed before Learned CIT(A). As noticed above, the impugned order is dated 28.01.2024 and present appeal came to be filed on 29.11.2024.
As is available from Form 35, the appellant-applicant had submitted email address as rajasnani0304@gmail.com for communication of notices etc. by way of email, whereas the earlier email address stated to have been furnished by the earlier counsel engaged was different one. Appellant-applicant has testified on affidavit to have disengaged the previous counsel in the year 2022. Nothing to the contrary has been brought on record by the department.
Sh. Rajkumar Asnani vs. ITO It is also not a case of the department that the impugned order was personally served upon the assessee.
Going by the unchallenged testimony contained in the affidavit of the applicant, he came to know of the passing of the impugned order only in the last week of November, 2024 when he received information about passing of penalty order, on his mobile phone. Even in this regard, nothing to the contrary has been submitted by the department . In the given situation, we deem it a fit case to condone delay in the filing of present appeal before this Appellate Tribunal.
Ld. AR for the appellant and Ld. DR for the department have also put forth their submissions on merits, as regards challenge to the impugned order passed by Learned CIT(A). As is available from the impugned order, the appeal filed by the assessee before Learned CIT(A) was dismissed being barred by limitation. There too, an application was filed by the assessee before Learned CIT(A) seeking condonation of delay of 195 days, as the assessment order was passed on 27.03.2022, but the same came to be challenged by way of appeal only on 07.10.2022.
Even before Learned CIT(A), the above said submissions were put forth i.e. the assessee having disengaged the earlier counsel, and previous Sh. Rajkumar Asnani vs. ITO counsel having furnished his email IDs protected by password, which was not within the knowledge of the assessee. In other words, the assessee attributed delay to the previous counsel and negligence in his failing to inform him about notices received or passing of or receipt of the assessment order.
Ld. AR for the appellant has submitted that the appellant disengaged the previous counsel in the year 2022. The assessment order was passed on 27.03.2022. We have enquired Ld. AR for the appellant if the assessee has filed any affidavit of the earlier counsel engaged but subsequently disengaged, to support the application/averments put forth before Learned CIT(A), while seeking condonation of delay. In response is that the earlier counsel did not oblige the assessee with any such affidavit. If that was so, the assessee should have atleast averred this fact in the application filed before Learned CIT(A), and then testified in the affidavit. But, the fact remains that no such averment was put forth by the assessee in the application submitted before Learned CIT(A). In the course of arguments, Learned AR for the applicant has submitted that son of the applicant went missing since 26.4.2024, and in Sh. Rajkumar Asnani vs. ITO this regard report was submitted to the police. Copy of Look Out Notice and copy of information lodged with the police have been submitted today.
Be that as it may, when the earlier counsel engaged by the assessee had furnished an email ID, which is stated to have been protected by password, not disclosed to the assessee, and that the assessment order was not personally served on the assessee, we deem it a fit case to set aside the impugned passed by Learned CIT(A) whereby the application seeking condonation of delay in filing the appeal was dismissed. We order accordingly.
Going ahead, we find that before passing the assessment order u/s 147 r.w.s. section 144 r.w.s. 144V of the Act, notice u/s 148 of the Act was issued to the assessee on 27.03.2021. It was followed by two other notices u/s 142(1) was issued on 18.11.2021 and 14.02.2022, but the assessee did not furnish any return of income or response before the Assessing Officer. Ultimately, show cause notice was issued to the assessee on 11.03.2022 seeking explanation as to why the cash deposits found to have been made by the assessee during the financial year 2016-17 be not treated as unexplained u/s 69A of the Act. As observed by the Assessing Officer, the assessee failed to furnish any reply to the said show cause notices.
Sh. Rajkumar Asnani vs. ITO Learned AR for the assessee submits that one opportunity be provided to the assessee of being heard on remand of the matter. Learned DR for the department has no objection to this submission, but subject to imposition of costs.
In the given situation, instead of remanding the matter to Learned CIT(A), for fresh decision of the appeal on merit, we deem it a fit case to remand the matter to the Assessing Officer for decision afresh, after providing opportunity to the assessee of being heard. In this regard, Ld. AR for the appellant and Ld. DR for the department are also in agreement, so that the entire facts are verified by the Assessing Officer, while framing assessment. Result 12. In view of the above discussion, the impugned order that the appeal disposed off for statistical purpose, and the matter is remanded to Assessing Officer for decision afresh for the purpose of framing of assessment relating to the assessment year 2017-18, after providing one opportunity to the assessee-appellant of being heard. The assessee to appear before the Assessing without fail. However, in the given facts and circumstances, keeping in view the conduct of the appellant-applicant being non responsive to the notice to the Sh. Rajkumar Asnani vs. ITO issued by the Assessing Officer, the assessee is burdened with a cost of Rs. 3,000/- . Costs to be deposited in “Prime Minister’s Relief Fund”. The Assessing Officer to ensure production of receipts in proof of deposit of cost imposed, before commencement of the proceedings pursuant to remand of the matter.