MAHESH KUMAR JAIN,VIDISHA vs. ITO, VIDISHA
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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 06.04.2022 passed by learned Commissioner of Income-Tax (Appeals)-NFAC, Delhi [“CIT(A)”] which in turn arises out of assessment-order dated 24.12.2018 passed by learned ITO, Vidisha [“AO”] u/s 143(3) r.w.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).
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Mahesh Kumar Jain ITA No. 441/Ind/2024 - AY 2011-12
The registry has informed that the present appeal is filed on
10.05.2024 against the impugned order dated 06.04.2022 after a delay of
765 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 submits (i) that the assessee is a small person
engaged in business of kirana items and the assessee is not technology-
friendly and that is why mentioned “No” against “Whether notices/
communication may be sent on mail?” in Form No. 35 filed to CIT(A).
Despite this, the notices of hearing as well as order of first-appeal were sent
by CIT(A) on the e-mail, (ii) that neither the notices nor the order of first-
appeal have been served physically upon the assessee, and (iii) that the assessee logged income-tax portal on 1st May, 2024 for filing of return of AY
2024-25 and at that time only noticed about the impugned order having
been passed ex-parte by CIT(A). Immediately, the assessee filed present
appeal on 10.05.2024 without further delay. He also referred Para 4 of
impugned order to show that all notices of hearing, even though email, were
issued by CIT(A) during Covid-19 pandemic period. Ld. AR very humbly
submits 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 submits that the sole reason
of delay is as explained in the condonation-application. He submits that
there is “sufficient cause” for delay and hence the delay should be condoned.
Ld. DR for Revenue did not have any objection if the delay is condoned. Ld.
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Mahesh Kumar Jain ITA No. 441/Ind/2024 - AY 2011-12
DR fairly expressed in the open court that it is a small case of kirana
business carried on by assessee and the assessee is not tech-sevy. 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 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 submits that since the notices sent by CIT(A) did not
reach to assessee, the assessee could not attend the hearings fixed by CIT(A),
which has led to the passing of ex-parte order by CIT(A). He, however,
asserts that the assessee is ready and willing to make representation before
CIT(A) if an opportunity is given and prays that the present matter should be
remanded to the file of CIT(A) for a proper adjudication of the
grounds/issues raised by assessee in first-appeal.
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Mahesh Kumar Jain ITA No. 441/Ind/2024 - AY 2011-12
Ld. DR for revenue agrees with the prayer of Ld. AR but makes a
request to direct the assessee to represent his case before CIT(A) and do not
seek unnecessary adjournments.
Considering above submissions and also having regard to the
principle of natural justice and fair play, we deem it fit to 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 an appropriate order
uninfluenced by his earlier order. The assessee is also directed to 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 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 05/05/2025
Sd/- Sd/-
(PARESH M. JOSHI) (B.M. BIYANI) JUDICIAL MEMBER ACCOUNTANT MEMBER
Indore
िदनांक/Dated : 05/05/2025
Patel/Sr. PS
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Mahesh Kumar Jain ITA No. 441/Ind/2024 - AY 2011-12
Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPYSr. Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore
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