Loading judgment…
Facts
The assessee filed an appeal against an ex-parte order passed by the CIT(A), which arose from an assessment order passed by the AO. The appeal was delayed by 420 days because the assessee's counsel did not inform them about notices or the impugned order, and notices were sent to the old address.
Held
The Tribunal condoned the delay, citing sufficient cause and the principle of substantial justice, and admitted the appeal for hearing. The matter was remanded to the AO for fresh adjudication.
Key Issues
Whether the delay in filing the appeal is condonable due to sufficient cause, and whether the matter should be remanded to the AO for fresh adjudication due to procedural lapses in serving notices.
Sections Cited
144, 147, 142(1), 253(5)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI B.M. BIYANI & SHRI PARESH M. JOSHI
आदेश/ O R D E R
Per B.M. Biyani, A.M.:
Feeling aggrieved by order of first-appeal dated 23.11.2023 passed by learned Commissioner of Income-Tax (Appeals)-Addl/JCIT(A)-2, Mumbai [“CIT(A)”] which in turn arises out of assessment-order dated 29.11.2019 passed by learned ITO-1(1), Ujjain [“AO”] u/s 144/147 of Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2012-13, 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 420 days and therefore time-barred. Ld. AR for assessee submitted that the assessee is a retired person. He submitted that the assessee has filed a condonation-application supported by an affidavit. Referring to same, Ld. AR explained that in Form No. 35 filed to CIT(A), the e-mail id gncu341@gmail.com / goyalandcompany@gmail.com was provided which belonged to assessee’s counsel. However, the counsel of assessee neither informed about the notices nor about impugned order. Therefore, neither the notices of hearing nor the impugned order sent by CIT(A) reached to assessee. Subsequently, when the assessee received recovery notice dated 19.02.2025 (copy of notice is placed before bench) from the office of AO, the assessee became aware of impugned order having been passed by CIT(A) as ex-parte. The assessee thereafter filed present appeal. Ld. AR very humbly submitted that there is no lethargy, negligence, mala fide intention or ulterior motive of assessee in making delay and the assessee does not stand to derive any benefit because of delay. He further submitted that the sole reason of delay is as explained in the condonation-application. He submitted that there is “sufficient cause” for delay and hence the delay should be condoned. Ld. DR for Revenue left the matter to the wisdom of Bench without raising any objection. We have considered the explanation advanced by assessee 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
Page 2 of 5 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 Hon’ble Supreme Court, we take a judicious view, condone delay, admit appeal and proceed with hearing.
On merit of case, Ld. AR submitted that the AO has also passed assessment-order ex-parte to assessee due to non-compliances of notices.
He submitted that the assessee shifted his residence from old address “04, Ahilya Marg, Gali No. 6, Lohri Ka Pul, Ujjain” to new address “47/1, New Hari Phatak, Mahakal Marg, Ujjain” but the AO issued physical notices u/s 147/142(1) to old address which is manifest from the noting made by AO in assessment-order thus: “This notice was served on the assessee through email of ITBA and speed-post on the last known address available in the records”; hence non-compliances occurred before AO. However, the assessee is having all relevant details/documents and is ready and willing to make a proper representation before AO if an opportunity is given and prays that the present matter should be remanded to the file of AO for a proper adjudication. Ld. AR also agrees that the assessee shall update new address and correct email id in departmental database.
Ld. DR for revenue agrees with the prayer of Ld. AR but makes a request to direct the assessee to represent his case before AO and do not seek unnecessary adjournments.
In view of above 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 AO, we remand this matter back to the file of AO for adjudication afresh, at the risk and responsibility of assessee. The AO shall give necessary opportunity of hearing to assessee and pass an appropriate order uninfluenced by his earlier order. The assessee is also directed to remain vigilant and ensure participation in the hearings as may be fixed by AO and do not seek unnecessary adjournments failing which the AO shall be at liberty to pass appropriate order in accordance with law. Ordered accordingly.
Resultantly, this appeal is allowed for statistical purpose.
Order pronounced in open court on 23/09/2025