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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 16.07.2024 passed by learned Commissioner of Income-Tax (Appeals)-NFAC, Delhi [“CIT(A)”] which in turn arises out of assessment-order dated 14.11.2019 passed by learned DCIT-3(1), Indore [“AO”] u/s 144 r.w.s. 147 of Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2012-13, the assessee has filed this appeal on following grounds:
Page 1 of 5 - AY 2012-13 “1.That the Ld. CIT (A) erred in law and facts of the case and confirmed the assessed total Income as determined by AO at Rs. 82,20,250/- as against the returned income of Rs. 2,70,250/-.
That the Ld. CIT (A) erred in law and facts of the case and confirmed the learned A.O. order us 144 of the Income Tax Act, 1961, ex-parte without providing due opportunity to be heard.
3. That the Ld. CIT (A) erred in law and on the facts of the case in passing an ex parte order. It is, therefore, prayed that the case be restored for a fresh hearing and assessment, considering the merit of the case.
4. The assessee craves to add, alter and amend any ground of appeal
.”
2. The registry has informed that the present appeal is delayed by 113 days and therefore time-barred. Ld. AR for assessee submitted that the assessee has filed a condonation-application supported by an affidavit.
Referring to same, Ld. AR explained that the delay has occurred due to the reason that neither the notices of hearing nor the impugned order of first- appeal passed by CIT(A) was physically served upon assessee. He further referred Para No. 7.1 of impugned order to demonstrate that the CIT(A) has given majority of notices during Covid-19 pandemic and the last notice dated 22.02.2024 was given after a gap of several months. He submitted that the impugned order ultimately came to the notice of assessee only when the order of first-appeal in a separate proceeding of assessee’s husband “Shri Mohan Jhanwar” came to the notice of assessee’s husband and the assessee’s matter was also dig up. Immediately thereafter the assessee paid appeal fee on 09.01.2025 and arranged to file this appeal on 21.01.2025. 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
Page 2 of 5 - AY 2012-13 that the sole reason of delay is as explained in the condonation-application.
He submitted that there is “sufficient cause” for delay and in the interest of justice, the delay needs to be condoned. Ld. AR went ahead to submit that the CIT(A) has dismissed assessee’s first-appeal for non-prosecution without adjudicating assessee’s grounds on merit in terms of mandate of section 250(6). He pointed out that the assessment-order is also ex-parte because, as noted by AO himself in Para 3 of assessment-order, the notices were served to assessee by “Assessment Module” of ITBA and not by physical mode.
Ld. DR for revenue left the matter of condonation of delay to the wisdom of Bench without raising any objection. He, however, proposed that since the assessment-order is ex-parte, it would be better to remand this matter to Jurisdictional AO (JAO).
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
Page 3 of 5 - AY 2012-13 account 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.
Further, having regard to the submissions of parties; 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 JAO, we remand this matter back to the file of JAO for adjudication afresh, at the risk and responsibility of assessee. The JAO 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 JAO and do not seek unnecessary adjournments failing which the JAO 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 10/07/2025