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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI B.M. BIYANI & SHRI PARESH M. JOSHI
Feeling aggrieved by order of first-appeal dated 10.08.2023 passed by learned Commissioner of Income-Tax (Appeals)-NFAC, Delhi [“CIT(A)”] which in turn arises out of assessment-order dated 11.12.2019 passed by learned ITO-4(4), Indore [“AO”] u/s 143(3) of Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2017-18, 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 549 days and therefore time-barred. Ld. AR for assessee submitted that the Page 1 of 6 affidavit filed by assessee is scanned and re-produced below:
Page 3 of 6 the crux of which is such that all notices of hearing from CIT(A) were received on email id of earlier counsel or assessee’s old email id. Therefore, the notices did not come to the knowledge of assessee and remained unattended leading to passing of ex-parte order by CIT(A). Later when the assessee updated email id on portal and on 29.11.2024 received another notice from AO’s office for imposition of penalty u/s 270A, the assessee filed a reply dated 07.12.2024 to AO informing that his appeal against assessment-order was pending and hence the penalty matter may be kept in abeyance. The AO re-produced assessee’s reply-letter on Page 4 of Penalty- order dated 21.03.2025. Thereafter, on next pages 5-11, the AO re-produced the impugned order dated 10.08.2023 passed by CIT(A) and rejected assessee’s reply on the footing that the assessee’s appeal had already been disposed off by CIT(A). Thus, from the penalty-order dated 21.03.2025, the assessee came to know that his appeal against assessment-order had already been disposed off through impugned order dated 10.08.2023. The assessee immediately filed present appeal against impugned order without further delay. Thus, explaining these facts, 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 Page 4 of 6 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 Hon’ble Supreme Court, we take a judicious view, condone delay, admit appeal and proceed with hearing.
On merit of case, learned representatives of both side are ad idem that Para No. 3 of assessment-order clearly reveals that the AO has passed assessment-order and made additions therein due to non-supply of cash- book by assessee. Ld. AR submitted that the assessee 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. 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