PRATHMIK KRSHI SHAK SAHKARI SANSTHA MARYADIT KHATEDAKALA,KHATEDAKALA vs. CIT, BHOPAL

Feeling aggrieved by order of first-appeal dated 16.04.2024 passed by learned Commissioner of Income-Tax (Appeals)-NFAC, Delhi [“CIT(A)”] which in turn arises out of assessment-order dated 17.03.2023 passed by learned Assessment Unit of Income-tax Department [“AO”] u/s 147 r.w.s. 144 & 144B of Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2018-19, the assessee has filed this appeal on the grounds mentioned in Appeal Memo (Form No. 36).

Ld. AR for assessee submitted that the impugned order was passed on 16.04.2024 but the same came to the knowledge of assessee on 17.07.2024 and therefore the assessee has mentioned the “date of service” as “17.07.2024” in Form No. 36. He submitted that the assessee filed appeal on 18.09.2024 which is within the statutory time period but, however, as a matter of abundant caution, the assessee has also filed a condonation- application supported by an affidavit. The assessee’s application is scanned and re-produced below:

Ld. AR iterated the explanation given by assessee in the above application and submitted that due to non-receipt of notices of hearing as well as impugned order, the assessee could not represent its case before CIT(A) and there occurred delay of about 3 months in filing this appeal. Ld.

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 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.

Ld. AR next submitted that the orders of both of the lower authorities are ex-parte. He referred a table noted by AO in Para No. 2 titled “Details of Opportunities given” and submitted that in Column No. 4 of the table titled “assessee received (yes/no)”, the AO has himself mentioned “No” against all notices issued by AO, thus the AO himself admits that none of the notices sent by him was received by assessee. Ld. AR submitted that regardless of such mention by AO, it is a fact that none of the notices sent by AO was received by assessee and therefore the assessee could not make representation before AO which has led to passing of assessment-order u/s

Ld. AR requested that in present case, it would be most appropriate to remand this matter to the file of AO for a fresh adjudication. Ld. AR acknowledges that the assessee is ready and willing to make a proper representation before AO if an opportunity is given and hence prays that the present matter should be remanded to AO.

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.

Considering 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

Resultantly, this appeal is allowed for statistical purpose.