KIRTI TRIPATHI,BHOPAL vs. ITO 2(4), BHOPAL

Feeling aggrieved by order of first-appeal dated 27.05.2024 passed by learned Commissioner of Income-Tax (Appeals)-NFAC, Delhi [“CIT(A)”] which in turn arises out of assessment-order dated 03.12.2018 passed by learned ITO-2(4), Bhopal [“AO”] u/s 147 of Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2011-12, the assessee has filed this appeal on the grounds mentioned in Appeal Memo (Form No. 36).

The registry has informed that the present appeal is delayed by 343 days and therefore time-barred. Ld. AR for assessee submitted that the assessee has filed an application for condonation of delay; the application filed by assessee is scanned and re-produced for an immediate reference:

The averments made by assessee in above condonation-application, which are self-explanatory and do not require any repetition, were discussed during hearing. Basically, the assessee has averred in Para 5 of application that his tax consultant, who filed first-appeal to CIT(A), mentioned his own e-mail id in Form No. 35 (Appeal Memo) and all notices of hearing were sent by CIT(A) to such e-mail id. However, the consultant failed to communicate or forward those notices to assessee owing to which the assessee was unaware of proceedings and could not make representation to CIT(A). This ultimately led the CIT(A) to pass impugned order ex-parte to assessee as well as delay in filing present appeal to ITAT against impugned order. After discussions, the Ld. DR for revenue does not have any objection if the bench condones delay and accordingly left it to the wisdom of bench. We have considered the explanation advanced by assessee in application and in absence of any contrary fact or material on record, the assessee is found to have a “sufficient cause” for delay in filing present appeal. We find that section 253(5) of the Act empowers the ITAT to admit an appeal after expiry of prescribed time, if there is a “sufficient cause” for not presenting appeal within prescribed time. It is also a settled position by Hon’ble Supreme Court in Collector, Land Acquisition Vs Mst. Katiji and others 1987 AIR 1353, 1987 2 SCC 387 that whenever substantial justice and technical considerations are opposed to each other, the cause of substantial justice must be preferred by adopting a justice-oriented approach. Thus, taking into account the facts of case, the provision of section 253(5) and the decision of Page 5 of 7 Hon’ble Supreme Court, we take a judicious view, condone delay, admit appeal and proceed with hearing.

On merit of case, it is urged by Ld. AR for assessee that since the CIT(A) has passed ex-parte order and merely upheld AO’s order but the issues/grievances of assessee require an apt adjudication by CIT(A), therefore the present matter ought to be restored at the level of CIT(A) for a fresh adjudication. Ld. AR acknowledges that the assessee is ready and willing to make a proper representation before CIT(A) if an opportunity is given.

Ld. DR submitted that he has no objection if the bench takes a call to remand this matter to CIT(A) but, however, he made a request to give specific direction to assessee for co-operation and representation before CIT(A) without seeking unnecessary adjournments.

In view of above facts and considering the submissions of parties; having regard to the principle of natural justice and also bearing in mind that no prejudice would be caused to revenue if the present matter is restored at the level of CIT(A), we remand this matter back to the file of CIT(A) for adjudication afresh. The CIT(A) shall give necessary opportunity of hearing to assessee and pass a meritorious order after considering submissions of assessee. The assessee is also directed to remain vigilant and ensure participation in the hearings as may be fixed by CIT(A) and do not seek unnecessary adjournments failing which the CIT(A) shall be at Page 6 of 7 liberty to pass appropriate order in accordance with law. Ordered accordingly.

Resultantly, this appeal is allowed for statistical purpose.